BNY19 v Minister for Immigration and Multicultural Affairs - [2025] FedCFamC2G 367

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BNY19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 367

File number(s): SYG 929 of 2019

Judgment of: JUDGE SKAROS

Date of judgment: 17 March 2025

Catchwords: MIGRATION – Judicial Review – Protection Visa – Bangladesh – Political persecution – Sexual assault – Relocation - Unreasonableness - Unwarranted assumption – Consideration of corroborative evidence – Failure to consider a claim – Application dismissed with costs

Legislation: Migration Act 1958 ss 36, 65, 412, 424AA

Cases cited:
ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

BEL16 v Minister for Home Affairs [2019] FCA 1678

BFH16v Minister for Immigration and Border Protection [2020] FCAFC 54; (2020) 274 FCR 532

BJI18 v Minister for Home Affairs [2019] FCA 266

BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729

BOH17 v Minister for Immigration, Citizenship & Multicultural Affairs[2023] FCA 573

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107

DKY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1166

FPA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 770

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802

Minister for Home Affairs v Omar (2019) [2019] FCAFC 188; (2019) 272 FCR 589

Minister for Immigration & Border Protection v Sabharwal[2018] FCAFC 160

Minister for Immigration & Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485

Minister for Immigration v Eshetu [1999] HCA 21

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59

SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18

SZHYH v Minister for Immigration & Border Protection (No 3) [2019] FCA 589; 194 ALR 676

SZNYF v Minister of Immigration and Citizenship [2010] FCA 839
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74

Division: Division 2 General Federal Law

Number of paragraphs: 185

Date of hearing: 13 February 2025

Place: Parramatta

Solicitor for the Applicants: Mr Jones, Michael Jones Solicitor

Solicitor for the First Respondent: Mr Dennis, Mills Oakley

Solicitor for the Second Respondent: Submitting appearance, save as to costs
ORDERS

SYG 929 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
BNY19

First Applicant

BNZ19

Second Applicant

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE SKAROS

DATE OF ORDER:

17 MARCH 2025

THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application filed on 12 April 2019 as amended is dismissed.
3.The Applicants pay the First Respondent’s costs fixed in the amount of $5,400.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS
INTRODUCTION

By application filed on 12 March 2019, and amended on 16 January 2025, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 21 March 2019. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) in refusing to grant the applicants Protection (Class XA) (Subclass 866) visas (the visas) under s 65 of the Migration Act 1958 (the Act).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.
BACKGROUND
The first and second applicants are, respectively, husband and wife. They are citizens of Bangladesh. They married in 2010. They have previously travelled to Malaysia in 2011, to India in 2012 and to the United Kingdom in 2013.
The applicants travelled to Australia on 7 February 2014 on visitor visas and applied for the visas on 3 March 2014.
In a statement provided with the visa application, the first applicant made the following claims for protection:
·The first applicant was actively involved with the Bangladesh National Party (BNP) during and after his studies including in 2008 during the election campaign in which the BNP lost and the Awami League (AL) won.
·In 2006 the first applicant formed a construction company with others, Steelex Development (Steelex). In 2007 Steelex received its first development contract and halfway through construction ‘we’ faced serious problems with ‘a group of Awami activists.’ These activists assaulted and stopped Steelex’s workers and demanded a ransom once construction was completed otherwise they wouldn’t allow construction to continue. The activists were followers and supports of Mr Kamal, a prominent AL leader and member of parliament. Steelex did not pay the ransom and had to abandon the construction project for six months. When construction recommenced in mid-2008 the activists appeared again, demanded a larger ransom, attacked workers and engineers and stopped the project again. Construction was again suspended and abandoned.
·During and after the 2008 election the first applicant became a ‘target of attack and assault by those Awami activists.’
·In April 2010, Steelex entered into a contract for another project which was ultimately successful and the Company and investors made a substantial profit.
·In October 2010, the first applicant married his wife, Mrs Khan, the second applicant. In 2011 the pair visited Malaysia as tourists. On return from Malaysia, the first applicant started ‘to face serious political consequences from the Awami activists’ due to the upcoming election because the first applicant was a BNP activist. The first applicant was attacked and insulted. Steelex was again obstructed by the AL activists and construction projects were halted.
·In 2012 the first applicant joined his wife’s maternal uncle in incorporating a new garment manufacturing business which soon became profitable. In 2012, the applicants visited India and in 2013 they visited the UK. In 2012 the first applicant was selected as the general secretary of a wing of the BNP. Upon returning to Bangladesh in March 2013, there were clashes between supporters of the AL, the BNP and the Jamate Islami parties including killings and arrests. The first applicant was ‘badly targeted because of [his] political activities for BNP’.
·In 2014, the first applicant’s garment business received a large order however due to a strike and unrest the business could not complete the order in time. The first applicant had a dispute with the buyer, he ‘went wild’ on the first applicant and cancelled the order. The buyer left a phone number and when the first applicant called this number it was Mr Kamal ‘himself on the phone abusing and threatening my life would be at risk’ because of the failed order and his BNP profile. The first applicant discovered that Mr Kamal was ‘behind that order’ and was disappointed and angry. Later, the first applicant discovered Mr Kamal filed a case against him for ‘holding illegal arms and explosives which was completely a false and fabricated allegation’ with the intention to make the first applicant suffer because he was a BNP activist.
·Due to the threats from Mr Kamal and given his party, the AL, were still in power, the first applicant took time off work and ‘remained cautiously’ with relatives and in-laws to avoid ‘unpleasant incidence and assaults’ but his hiding ‘did not help much in that respect.’
·Mr Kamal and his associates filed another case against the first applicant because he was associated with the BNP.
·On 27 November 2014, the second applicant was returning from shopping when a mini-bus stopped her and the men inside dragged her into the bus, brought her to an unknown place, interrogated her as to the first applicant’s whereabouts and identified themselves as ‘fellows of’ Mr Kamal. She did not disclose the first applicant’s location so she was ‘randomly raped’ and had hot water thrown on her. Experiencing extreme pain and an ‘almost dying situation’ the men left her at a hospital and escaped. After three days the first applicant was informed that his wife was at the hospital. After being discharged an unknown person handed a warning letter to the applicants’ gate keeper which stated that if they file a case or report to the news media in relation to the incident they would ‘have to pay a high price.’ Being afraid of this threat, they did not file any case or make any report.
·Since the rape of his wife, the first applicant has been having nightmares, couldn’t concentrate on his business. The first applicant lost his pride, lost interest in his business and lost his lifestyle. The applicants decided to escape out of Bangladesh to ‘avoid such incidents once for all.’
In her statement, the second applicant largely repeated the claims made by the first applicant.
The applicants also provided various documents in support of their protection claims. The applicants attended an interview on 28 June 2016.
On 8 July 2016, the delegate refused to grant the visas. The delegate accepted that the first applicant was a successful businessman in Bangladesh, but did not accept that he was a member of the BNP and/or that he had a profile that would likely attract any adverse attention. The delegate did not accept that any false charges were initiated against the first applicant or that he would be persecuted by members of the AL on account of his political opinion. As to the second applicant, the delegate did not accept that she was raped or had hot water poured on her on account of the first applicant’s political opinion or that she would be persecuted by members of the AL on account of her imputed political opinion.
The applicants sought review of the delegate’s decision on 21 July 2016. A copy of the delegate’s decision record was provided to the Tribunal with the application for review.
On 12 December 2016, the Tribunal received information from an anonymous source alleging that the second applicant’s burns were the result of an accident with a kettle and that the applicants came to Australia using passports containing false names: CB 481. This information was disclosed to the applicants under s 424AA of the Act at the first Tribunal hearing. After the second hearing, the first applicant provided a statutory declaration indicating that he suspected their former agent, whom they later learned was affiliated with the AL, was responsible for providing the allegations as they discontinued the former agent’s professional services and requested copies of their documents which made him angry.
The applicants appeared before the Tribunal on 8 February 2019 and 1 March 2019 to give evidence and present arguments. They were assisted by their registered migration agent and an interpreter in the Bengali and English languages.
At the resumed hearing (held on 1 March 2019), the Tribunal took evidence from Mr Haque, a friend and political colleague of the first applicant in Bangladesh and former President of the BNP Australia. The Tribunal also took evidence from Mohammed Al Amin, the first applicant’s lawyer/advocate in Bangladesh.
Further documents were also provided by the applicants (via their migration agent) to the Tribunal in support of their claims for protection.
On 21 March 2019, the Tribunal affirmed the decision of the delegate not to grant the applicants the visas.
THE TRIBUNAL’S DECISION
The dispositive issue in the review was whether the applicants were persons in respect of whom Australia had protection obligations under s 36 of the Act.
The Tribunal identified the criteria for a protection visa; that the applicants must either satisfy the ‘refugee’ criterion or meet the ‘complementary protection’ grounds for protection. The relevant definition of ‘refugee’ and the provisions relevant to the complementary protection grounds under the Act were also set out.
The Tribunal identified that it must have regard to Ministerial Direction No. 56 made under s 499 of the Act, and that it must take into account the policy guidelines titled PAM3 Refugee and Humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and Humanitarian - Refugee Law Guidelines and any relevant country information assessments. Prepared by the Department of Foreign Affairs and Trade (DFAT report).
The Tribunal noted that the Department’s file contained a s 438(1)(a) public interest non-disclosure certificate which was said to be in respect of ‘internal working documents and business affairs.’ The Tribunal considered the certificate invalid as no reason had been provided about why disclosure of the information would be contrary to public interest. In any event, the Tribunal informed the applicants of the certificate and noted that the information covered by the certificate was not relevant to its decision.
The Tribunal then summarised the claims and evidence before it, being those contained in the statement accompanying the visa application and outlined the documents before it in support of the claim. This included a police complaint from 2013, a document relating to the BNP, a letter from a hospital stating that the second applicant was admitted to the hospital from 28 November 2013 to 30 November 2013, that she had been raped and had hot water burns caused by unknown persons, and a health report dated 1 July 2016 from a nurse at the ‘Asylums Seekers Centre’ stating that the second applicant was seen at the centre twice in 2014 and that she recorded being tortured and sexually assaulted in November 2013 in Bangladesh and that she had a comprehensive assessment but did not wish to seek counselling as she found talking about the assault traumatic.
The Tribunal briefly summarised the delegate’s decision and noted that it had received information on 12 November 2016, being a typed statement from an unknown person which stated that the second applicant’s burns were a result of ‘an accident with a kettle’ and that the applicants came to Australia using passports containing false names.
The Tribunal then summarised the submissions made and documents provided to the Tribunal. On 1 February 2019 various documents were provided to the Tribunal including birth certificates, various letters, court documents and order sheets, a memorandum, a letter to police, and a charge sheet.
On 4 February 2019 the second applicant provided to the Tribunal a statutory declaration in which she submitted:
·She was not comfortable discussing her rape with a male case officer;
·AL supporters believe she will seek justice for the rape if she returns to Bangladesh;
·Women in Bangladesh are vulnerable to attacks aimed at destroying their family’s dignity;
·The trauma she has suffered has scarred her mind which would become worse if she was to return;
·She is fearful her baby daughter would be a victim of sexual assault by AL people;
·The authorities would not protect her because the AL is in power again and this has further aggravated her mental issues;
·She is fearful her daughter would become a ‘street child’ and would be sexually exploited because she and her husband would be killed if they returned to Bangladesh; and
·She will become mentally disabled and would not get adequate care in Bangladesh because medical professionals have chauvinist attitudes that blame women for rape.
The first applicant’s ‘advocate’ also provided the Tribunal a statutory declaration which submitted that he was handling legal cases on behalf of the first applicant in Bangladesh, that in the first case the first applicant had been sentenced to ten years prison and a fine which if not paid would extend the sentence for another three months and that the second case is still before a court. It was submitted that it would be unsafe for the first applicant to return to Bangladesh.
On 4 February 2019, the applicants’ representative provided submissions to the Tribunal. It was submitted that the applicants fear persecution on the grounds of political opinion and as a member of particular social groups being the Bangladeshi diaspora involved in activities against the AL and Bangladeshi businesspersons with BNP affiliation. It was submitted that the first applicant would be targeted and imprisoned if he returned due to his activities against the AL government and that the second applicant would be a victim of sexual violence and attacks.
Numerous submissions were also made with reference to country information as follows (without alteration):
a. Country information confirms that deeply politicised, dysfunctional criminal justice system is undermining the rule of law and democracy in Bangladesh. In such a situation the applicant would be unable to get adequate state protection.
b. Bangladesh’s law enforcement and judicial system is tasked with suppressing the AL government’s political rivals.
c. Thousands of criminal cases have been lodged against opposition members and activists.
d. The United Kingdom states that Bangladesh is among 30 countries that have shown no improvement in matters of human rights.
e. Political violence continues and has increased and the practice of summary executions of political opponents continues. Torture is the norm of the law enforcement system and is used to silence political opponents.
f. The security situation in Bangladesh is volatile and can deteriorate quickly with little warning.
g. Active members of opposition political parties and auxiliary organisations who participate in demonstrations face a high risk of arrest and physical violence both from security forces and ruling party activists.
h. DFAT assesses that most Bangladeshi’s and particularly those with connections to opposition parties would seek to avoid engagement with the police.
i. The authorities act with impunity. Opposition activists continue to be arrested and killed summarily.
j. Prior to the recent election the government escalated its crackdown on the opposition.
k. Violations of human rights occur so frequently they are now normalised.
l. The government is moving towards an even harsher crackdown against it opponents and has unleashed its student wing to perpetrate violence against demonstrators.
m. Bangladesh’s overcrowded prisons are presently housing over 10,000 opposition activists. There are also secret detention centres across the country where the law enforcement agencies hold people incommunicado.
n. Thugs with connections to the AL engage in extortion and extortion is rampant throughout the country.
o. AL leaders use a new para military force – Rokkhi Bahini to target businessmen to extort money. RAB has also been accused of extortion.
p. More than half the members of parliament are directly engaged in criminal or corrupt acts such as killings, land grabs and extortion.
q. Most businesspeople in Bangladesh are forced to pay a section of politicians for the sake of their lives and businesses.

On 6 February 2019 further documents were provided to the Tribunal including medical reports and a document relating to BNP committee members.
The Tribunal then summarised the oral evidence given at the hearing.
Having considered the evidence before it, the Tribunal accepted (at [95]) that
(a)The applicants are nationals of Bangladesh and assessed their claims against Bangladesh.
(b)The applicants are former residents of, and have family who remain living in, Dhaka, Bangladesh;
(c)The first applicant’s father is a retired businessman and his brother has also operated his own garment business in Dhaka for about seven years;
(d)The first applicant had business dealings of his own in Dhaka until coming to Australia;
(e)The applicants married in Bangladesh in October 2010;
(f)The applicants travelled to Malaysia in February 2011 and thereafter to India in April 2012 and the UK in February 2013;
(g)The applicants arrived in Australia on 7 February 2014 and applied for Protection visas soon after on 3 March 2014; and
(h)The applicants’ daughter was born in Australia on 21 September 2018.
The Tribunal then stated it had concerns about various other aspects of the applicants’ claims and evidence - it categorised and explained these concerns separately and made findings. The Tribunal did not make a general adverse credibility finding regarding either of the applicants. Adopting the headings of the Tribunal’s decision, these have been summarised below.
The first applicant’s Bangladesh Nationalist Party (BNP) affiliations
At [97] of its decision, the Tribunal accepted that the first applicant had some involvement with the student wing of the BNP during his college years and may have engaged in some campaign activities for his local member in the 2008 elections. The Tribunal also accepted that after a period of little to no political involvement, he may have later re-joined a local chapter of the BNP and been elected as the General Secretary of Zia Soinik Dal in 2012, a very small local branch of the BNP. Lastly, the Tribunal accepted that the first applicant had on occasion participated in BNP Australia meetings in Sydney (approximately every 3-6 months on his evidence) and that he recently assumed a ‘non-political role’ as the Sports Secretary of the BNP Australia. The Tribunal did not accept, however, that he was targeted for being a known financial donor to the BNP, an issue only introduced at the hearing. At [98], the Tribunal considered this was introduced to strengthen his claimed political involvement.
First named applicant’s business dealings in Dhaka
The Tribunal accepted that the first applicant formed a property development business in around January 2007. The Tribunal also accepted that the first development contract stalled because a prominent AL leader and businessman, who unsuccessfully tendered for the same project, had sent persons to demand payment of a large sum of money for the project to proceed. The Tribunal accepted that the company put the project on hold until after the 2008 election and that their attempt to restart the project after the election was met with a similar demand for an even greater sum of money causing the project to be ceased again.
The Tribunal was of the view that the extortion attempts were due to the animosity which arose as a result of the AL leader not being granted the tender to develop the land and not because of the first applicant’s BNP affiliations. The Tribunal found it significant, according to the first applicant’s oral evidence, that his problems with the AL leader only commenced after the launch of his property development business.
The first applicant claimed that he encountered problems with the AL leader in his garment business in September 2013, which he commenced in February 2012. The Tribunal did not accept that the AL leader made further attempts to harm or punish the first applicant following the problems which occurred in respect of the rivalry over the property development incident. Nor did the Tribunal find plausible that he would in future attempt to destroy the first applicant or his family some 11 years after the property development dispute.
False cases against first named applicant
At [103] to [109], the Tribunal expressed concerns regarding the existence of false criminal cases against the first applicant, which the first applicant claimed arose following the AL leader’s interference with his garment business and forced him to go into hiding. The Tribunal considered the following cumulatively and determined that there were no false cases filed against the first applicant as alleged: the free passage of the applicants out of Bangladesh; independent country information pertaining to the high prevalence of easily obtained falsified documents in Bangladesh; and problematic evidence (inconsistent accounts) of the length of the client relationship between the first applicant and his Bangladeshi lawyer (referred to as an advocate). As to the letters and oral testimony of the first applicant’s advocate regarding the false cases, the Tribunal gave them no weight due to the concerns it had. The Tribunal concluded that there were no false cases filed against the applicant.
Second applicant’s claimed sexual assault
The Tribunal gave no weight to an anonymous note regarding injuries sustained by the second applicant. The Tribunal accepted that the second applicant was the victim of sexual assault in Bangladesh but was not persuaded that it was a politically motivated attack or on account of the first applicant’s BNP’s affiliations or business dealings. The Tribunal came to this conclusion because the supporting evidence was the second applicant’s own account of events that was provided to the medical professionals who treated her and the reports she provided in support of the protection application. In this regard the Tribunal noted that the report from the initial treating hospital makes no mention of the ‘circumstances in which the rape occurred’ as does a letter from Dr Ali who later treated her at home. Dr Ali’s evidence to the Tribunal in this regard was vague and, when questioned about the cause of injuries, he said the second applicant ‘could have been a victim of the then current government’.
Whether there was a real chance the applicants will suffer serious harm if they return to Bangladesh?
The Tribunal was not satisfied there was a real chance the applicants would suffer serious harm on return to Bangladesh for the reason of the first applicant’s political opinion or membership of a particular social group, that being, Bangladeshi diaspora involved in activities against AL government.
The Tribunal found that there were no false cases brought against the first applicant and there was no real chance he would suffer arrest on those grounds. It also did not accept that the first applicant was a high profile, politically active BNP member in Bangladesh and considered his level of political involvement in Australia to be infrequent, low level, and not likely to draw attention of any AL members residing in Australia.
The Tribunal also found that there was no real chance the second applicant would be at risk of serious harm, namely physical or sexual violence, due to the first applicant’s political affiliations or past problems with a prominent AL politician. At [120] of its decision, the Tribunal did not accept that the second applicant was raped for political reasons or that AL supporters would have reason to believe it would be conducive for the second applicant to seek justice for the rape on return to Bangladesh.
The Tribunal at [121] did not accept that the AL leader had a continued or ongoing interest in harming the first applicant and his family by extension, and therefore, the second applicant would not be vulnerable to revenge attacks by AL activists or persons acting for the AL leader.
Fear of physical or sexual violence generally
At [123], the Tribunal noted that the applicants’ daughter was not a party to the review and only considered this claim in respect of the second applicant. However, at [132] of its decision, the Tribunal addressed the submission that their child would become a street child that they would be exploited sexually if the first applicant was arrested and gaoled. Since the Tribunal did not accept that first applicant would be gaoled, it rejected that the child would become a street child or be exploited sexually.
The Tribunal considered the country information which stated that gender-based violence against women occurred frequently in Bangladesh, with a high percentage of rapes and attempted rapes involving girls between 7 and 12 years of age. The Tribunal considered that the second applicant would have the protection and continuing support of her husband (the first applicant). It accepted that the second applicant had been raped in the past, but that it was ‘not a targeted event but an unfortunate random event’ and did not accept it was an indicator of what might happen in future. The Tribunal ultimately found that there was no real chance the second applicant would be at risk of physical or sexual violence on account of her gender if she returns to Bangladesh.
Serious harm arising from lack of mental health care in Bangladesh
A [128], the Tribunal found that the second applicant did not have a genuine fear of not being able to access adequate psychological help in Bangladesh or that she needs or is motivated to obtain help given she has not prioritised completion of scheduled sessions in Australia. As such, the Tribunal was not satisfied that the second applicant would face serious harm on return to Bangladesh for these reasons.
With respect to the first applicant, the Tribunal accepted that he had sought mental health treatment in Australia for anxiety and PTSD arising from his wife’s sexual assault. It considered country information regarding mental health standards being below those available in Australia but was not persuaded he would not be able to access any psychological help in Bangladesh.
Membership of particular social group – Bangladeshi businessmen with BNP affiliations
The Tribunal considered country information regarding extortion risks faced by business owners in Bangladesh and the first applicant’s brother’s experience operating a garment business for several years without encountering issues of extortion. The Tribunal was not satisfied that if the first applicant were to be extorted for money that such treatment would amount to serious harm or therefore persecution: [133]—[134] of its decision.
The Tribunal also considered that given the first applicant’s current and prior work experience he would be able to find paid employment in Bangladesh should he wish to avoid pressures of running a business.
Ultimately, the Tribunal was not satisfied there was a real chance the applicants would suffer serious harm on return to Bangladesh for the reason of the first applicant’s political opinion or membership of a particular social group, that being, Bangladeshi businessmen with BNP affiliations.
Claimed stigma and ostracism associated with the second applicant’s sexual assault
The Tribunal noted that knowledge of the second applicant’s rape was limited to their family members and the Tribunal was not persuaded that the families would have anything to gain by spreading news of the sexual assault. The Tribunal also did not consider there was a real chance that involved medical professionals would break the second applicant’s confidence.
The Tribunal was prepared to accept that the applicants may be estranged from their families due to opinions or shame associated with the sexual assault if the news of the sexual assault was spread (which it did not believe it would). However, it found that the risk of stigmatisation and ostracism would be confined to the locality of Dhaka in Bangladesh unless the applicants themselves revealed that information. Accordingly, the Tribunal found that the applicants could relocate in the event they were faced with stigmatism, ostracism or were otherwise seriously harmed on account of the second applicant’s previous sexual assault and that such relocation would be reasonable in the circumstances.
The Tribunal was not satisfied that either applicant was a person in respect of whom Australia has protection obligations. The Tribunal found, for reasons outlined above, that the applicants did not satisfy the criterion set out in s 36(2)(a).
Complementary protection
The Tribunal also found that the applicants did not satisfy the complementary protection criterion in s 36(2)(aa) of the Act as it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh there was a real risk the applicants would suffer significant harm including on account of the first applicant’s political opinion or occupation or on account of the second applicant’s previous sexual assault.
The Tribunal considered that, in the event the applicants were stigmatised and/or socially ostracised on account of the previous sexual assault in relation to the complementary protection criterion, the applicants would be able to reasonably relocate to an area of the country where there would not be a real risk that the applicants would suffer significant harm.
The Tribunal affirmed the decision of the delegate not to grant the applicants protection visas.
APPLICATION TO THIS COURT
On 12 April 2019 the applicants filed the originating application. The applicants also filed an affidavit on 12 April 2019, which annexed the Tribunal’s decision. As the Tribunal’s decision record was included in the Court Book, it was not necessary to admit this affidavit into evidence.
In compliance with orders made by a Registrar of this Court, on 23 May 2019, the Minister filed the Court Book and the applicants filed the affidavit of Winnie David, affirmed on 17 June 2019, which annexed the transcripts of the hearing conducted before the Tribunal on 8 February 2019 (T1) and 1 March 2019 (T2) respectively (the David Affidavit).
The amended application before the Court, filed on 16 January 2025, advanced four grounds of review, which have been considered further below.
On 16 January 2025, the applicants filed an outline of submissions and list of authorities. On 30 January 2025, the Minister filed written submissions addressing the grounds raised in the amended application.
On 12 February 2025, the Minister also filed a Supplementary Court Book.
On 13 February 2025 the final hearing was held at the Parramatta Registry of the Court. Mr Michael Jones appeared on behalf of the applicants. Mr Liam Dennis appeared on behalf of the Minister.
The Court Book was tendered into evidence and marked Exhibit CB. The Supplementary Court Book was tendered into evidence and marked Exhibit SCB. The Winnie Affidavit was read and is in evidence.
Oral submissions were made by the parties which developed their written submissions.
GROUNDS OF REVIEW
The applicants advanced the following four grounds of review (without alteration):
Ground 1
The Tribunal failed to evaluate the First Applicant's claims in a reasonable or logical manner, or alternatively failed to take into account a relevant consideration, by failing to properly assess the evidence that false criminal charges had been brought against the First Applicant.
Particulars:
(a) The Tribunal misinterpreted the evidence in relation to the possibility that a person against whom charges had been laid in a Court in Bangladesh would be able to leave the country, and speculated, without any evidence, that a Member of Parliament with whom the First Applicant was in dispute would have been aware of the details of his plans to leave the country and would have had the power or influence to have him detained at the airport.
(b) The Tribunal decided to give no weight to documentary evidence of the false cases. In doing so it referred only to the prevalence of document fraud in Bangladesh and to the fact that the Applicants did leave the country without being detained at the airport. The evidence of document fraud on which the Tribunal relied did not list Court documents among the types of prevalent fraudulent documents. The Tribunal did not refer to any internal evidence in the Court documents that would have suggested that they were not genuine.
(c) The genuineness of the documents was attested to by a witness who was introduced as a lawyer acting for the Applicant in Bangladesh. The Tribunal did not question the lawyer's credentials, and although it referred to an apparent discrepancy in the evidence as to how long the lawyer had been representing the Applicant, it did not explain why that discrepancy was relevant and did not make a finding that the lawyer was not telling the truth.
Ground 2
The Tribunal's findings in relation to the motivation for the sexual assault of the Second Applicant were not based on a reasonable independent assessment of her claims.
Particulars:
The Tribunal accepted that the Second Applicant had been the victim of a sexual assault, based on the medical evidence and her oral evidence at the hearing. The Second Applicant's oral evidence was precise and consistent in respect of the circumstances of the attack and the motivation of her assailants.
The Tribunal rejected the Second Applicant's evidence concerning the circumstances and motivation of the attack only because it did not accept the substance of the first Applicant's claims, without considering whether the Second Applicant's account of the rape was itself plausible and corroborative of the first Applicant's claims.
Ground 3
The Tribunal's assessment of the reasonableness of relocation was based on unfounded assumptions that no reasonable Tribunal could have made.
Particulars:
The Tribunal had no rational basis for determining that information about the sexual assault would not become known in other areas of the country outside of Dhaka.
Ground 4
The Tribunal failed to consider an aspect of the Applicants' claims that was plainly before it.
Particulars:
The Tribunal refused to consider any claims relating to the daughter because she was not a party to the review. However, it was clear on the evidence before the Tribunal that the Applicants would have been emotionally and psychologically damaged if any harm came to their daughter.
Ground 1
By ground one the applicants contend that the Tribunal’s evaluation and/or assessment of the evidence pertaining to the first applicant’s claim that false charges had been brought against him was unreasonable or illogical. In the alternative, the error is expressed as a failure on the part of the Tribunal to take into account a relevant consideration in respect of that claim.
At [109], the Tribunal concluded that there were no false charges filed against the applicant. The reasons it gave for that conclusion were:
(1)That the applicants were able to depart Bangladesh legally using travel documents in their own names;
(2)Country information indicated that there is a high prevalence of easily obtained falsified documents in Bangladesh; and
(3)The discrepancy in the evidence given by the first applicant and by the lawyer in Bangladesh as to the period they had a client/lawyer relationship resulting in it giving no weight to the court documents.
The applicants sought to impugn each of these reasons on the basis that the Tribunal unreasonably relied on general speculation about the effectiveness of controls at Bangladeshi airports and unwarranted assumptions about the power of a Member of Parliament (MP) to influence airport procedures, non-specific evidence of document fraud and irrelevant inconsistencies in the evidence without properly evaluating the possibility of the court documents being genuine and therefore corroborative of the applicants’ claims.
Departure from Bangladesh

It was submitted that the Tribunal’s concern [at 104], that the applicants would not have been able to depart from Bangladesh if there was a court case against the first applicant, was not supported by the evidence before it. The applicants take issue with the Tribunal’s statement at [105] where it stated:
The applicant claims that somewhat unusually in the circumstances the police immediately commenced a rigorous search for him after the first false case was initiated to the extent that he could not even be present and provide support to his wife who had suffered a horrendous sexual assault.
It was submitted that this description (that there was a rigorous search for the first applicant and that he could not be present to support his wife) was not supported by the evidence. It was submitted that the first false case made against the first applicant was filed on 6 November 2013 (T1, 13.37), that the rape occurred three weeks later (on 28 November 2013), and that the first applicant’s evidence was that the police visited his home after the case was lost. It was contended that the first applicant, after speaking with the police, did leave his house and go into hiding, but there was no suggestion they engaged in any search for him, rigorous or otherwise. It was contended that the first applicant, despite being in hiding, did go to the hospital to see his wife who had been raped and was missing for two days. It was submitted that the second applicant did not want to stay in the hospital and the first applicant took her to be treated privately. It was contended that the Tribunal’s description of these events was not based on the evidence before it.
In explaining the relevance of the above, it was submitted that this related to the Tribunal’s reasoning regarding the applicants’ ability to depart Bangladesh legally via the airport, and that the Tribunal’s statement that the MP was so ‘intent on him being arrested and sentenced that the police were instructed to maintain a rigorous search for him,’ was not supported by the evidence before it. The applicants also took issue with the Tribunal’s reasoning that ‘the logical and first course of action would have been to inform the airport authorities to stop the applicant from departing the country’. The applicants submitted that it was unreasonable for the Tribunal to make assumptions (which were unwarranted and not supported by evidence) about how groups or individuals would behave in these circumstances.
The applicants relied upon FPA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 770 (FPA18) per Judge Laing at [41]-[45], and the cases cited therein, in which the court considered that findings which involved the making of ‘unwarranted assumptions’ about the behaviour of authorities or individuals in other jurisdictions would not be reasonably or logically open.
The applicants also relied upon SZHYH v Minister for Immigration & Border Protection (No 3) [2019] FCA 589 (SZHYH) at [46] in which Allsop CJ found that the Tribunal fell into error by assuming that if the applicant had been on bail the Chinese authorities would have required him to surrender his passport, and at [48] that it was not credible that the Chinese authorities would wait two weeks to arrest him after a protest.
The applicants submitted that the Tribunal had made assumptions about what a particular individual (about whom it had only be barest of factual evidence) would do in a given situation which were not reasonably or logically open to it. By reference to the transcript, it was submitted that the first applicant and his lawyer had suggested that court and airport systems in Bangladesh might not be linked, that many people fled the country without being stopped despite having false cases against them and that a warrant would not be issued until three to four weeks after a case is lodged.
The applicants also took issue with the Tribunal’s reliance on country information (at 5.20 of the DFAT Report), noting it said nothing about surveillance at the airport.
Document fraud
The applicants took issue with the Tribunal’s consideration of the documentation provided in support of the first applicant’s claims, including a court judgment and police documents.
At [106] the Tribunal referred to ‘a high prevalence of easily obtained falsified documents,’ based on information in the UK report and DFAT report. It was submitted that neither report refers to fraudulent court or police documents; the UK report refers to ‘a significant prevalence of fraudulent documents [in Bangladesh] including passports, birth certificates, bank statements, taxation documents, business documents, school documents, marriage certificates’ and the DFAT report refers to a high prevalence of document fraud in relation to birth certificates and passports, suggesting that it is the source documents used to obtain the genuine certificates or passports that may be fraudulent.
The applicants contended that even if fraudulent documents are common, a particular document may still be genuine. The applicants referred to SZNYF v Minister of Immigration and Citizenship [2010] FCA 839, where Collier J considered a Tribunal decision that gave no weight to a Chinese summons document because of country information about document fraud in general and its view of the appellant's credibility. Her Honour said at [26]:
[…] the key issue in my view is that, in this case, the link between the Tribunal’s views of the appellants’ credibility, and the veracity of a document which otherwise appears on its face to be a valid sealed document from a PSB of the People’s Republic of China concerning the appellant wife, is not explained. It may be possible for evidence of an applicant before the Tribunal to result in adverse credit findings by the Tribunal, but nonetheless the applicant be the genuine recipient of a valid summons from a PSB in China.
At [29] her Honour referred to authority that a Tribunal decision which did not take into account a relevant consideration would be a jurisdictional error and held at [30] that if the document in question was genuine it would have been a relevant consideration for the Tribunal to take into account.
It was submitted that the first applicant’s lawyer in Bangladesh had attested to the genuineness of the court documents. It was noted that at [106] the Tribunal accepted the lawyer’s explanation as to why the documents identified the case under the first applicant’s name despite him being one of several defendants. The applicants, however, took issue with the Tribunal’s reliance on what it considered to be a discrepancy in the evidence about how long the lawyer had been acting for the applicant. The applicants queried the relevance of the discrepancy and contended that the lawyer, who would have had records, was certain about the length of time he had represented the first applicant (T1, 33.46), whereas the first applicant was not sure about the length of time (T1, 32.45-49).
The applicants relied upon the comments in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 wherein the Full Federal Court said at [28]:
even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.
The applicants contended that in so far as the accuracy of the first applicant’s recollection was concerned, the hearing had taken place more than five years after the events being discussed. The applicants relied upon BFH16v Minister for Immigration and Border Protection [2020] FCAFC 54 (BFH16) at [46]-[47] wherein the majority of the Full Court described as lacking in logic the Tribunal's reasoning that discrepancies (albeit ‘very significant’) between two accounts of the details and immediate aftermath of events which had occurred 6 years previously made their claims ‘implausible’.
The applicants also relied upon BEL16 v Minister for Home Affairs [2019] FCA 1678 (BEL16) at [16] in which Beach J identified the types of possible errors that can be made when assessing credibility.
The applicants relied upon the comments of the Full Court of the Federal Court in ASB17 v Minister for Home Affairs [2019] FCAFC 38 per Griffiths, Mortimer and Steward JJ at [43]:
On the other hand, differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person’s credibility, or (perhaps more likely) reliability. Or they may not. Simply (and incorrectly) attaching the label “inconsistent” to differing accounts of an event, or differing narratives, does not make them so. Where an adverse finding is made on the basis of differences in accounts, it will usually be necessary to properly discharge the fact-finding task for a decision-maker to explain why she or he has found those differences of such a nature as to justify rejection of the narrative or account given by a person.
The applicants contended that the significance of the apparent inconsistency concerning how long the lawyer had been acting for the first applicant was not explained by the Tribunal. It was submitted that, in a case where one of the witnesses is a legal professional, an inference that their evidence was fabricated would amount to a serious accusation of professional misconduct and that the Tribunal did not put that to the lawyer, nor did it question his credentials.
In summary, the applicants contended that the Tribunal had committed a jurisdictional error by unreasonably speculating about the effectiveness of controls at Bangladeshi airports and making unsubstantiated assumptions about the power of an MP to influence airport procedures and that its assessment of this was based in part on a finding not reasonably open to it: that the applicant at the relevant time was subject to rigorous searches by authorities. It is also contended that the Tribunal had acted unreasonably and/or failed to properly consider evidence by relying on non-specific information about document fraud and taking into account irrelevant inconsistencies in evidence without properly evaluating the possibility of the documents being genuine and thereby supportive of the applicants’ claims.
The Minister’s submissions
The Minister submitted that the Tribunal’s decision plainly demonstrates that the Tribunal considered the applicants’ claims and that its explanations amounted to active intellectual engagement Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [43]-[46]; Minister for Home Affairs v Omar [2019] FCAFC 188 at [37].
The Minister contended that on the evidence provided by the applicants, it was open to the Tribunal to conclude, as it did at [109], that there were no false cases filed against the first applicant. In oral submissions the Minister relied upon evidence in Court Book and transcript in support of their contention that the Tribunal’s reasons and findings were open to it on the evidence before it.
The Minister further contended that the question of what country information to prefer and the weight given to country information was a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], [13] per Gray, Tamberlin and Lander JJ. The Minister submitted that there was nothing in the Tribunal’s consideration of the country information that revealed error: BJI18 v Minister for Home Affairs [2019] FCA 266 at [27] per Thawley J.
The Minister further contended that the Tribunal was not required to uncritically accept the applicant’s claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; [1994] FCA 1253.
Consideration of ground one
It is well established that 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: Minister for Immigration & Border Protection v Sabharwal[2018] FCAFC 160 at [45].
However, a decision will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (SZMDS) at [130]–[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J.
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: Minister for Immigration & Border Protection v Stretton [2016] FCAFC 11 at [21].
A party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption was 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: BOH17 v Minister for Immigration, Citizenship & Multicultural Affairs[2023] FCA 573 at [8].
The threshold for finding illogicality, irrationality or unreasonableness is a high one and is not a finding to be made lightly: BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729 at [45] – [46].
The question to be determined is whether the Tribunal’s reasons for concluding that there were no false cases against the first applicant in Bangladesh were reasonably open to it (or whether they lacked a rational foundation, or an evident or intelligible justification).
The first reason given by the Tribunal is that the applicants were able to legally depart Bangladesh using travel documents in their own name in circumstances where an MP had initiated false cases against the first applicant and had instructed police to maintain a ‘rigorous search’ for him. The applicants contended that there was no evidence to support the Tribunal’s description that the police were searching (rigorously or otherwise) for the first applicant and that the Tribunal had made an unwarranted assumption about the power, influence and conduct of the MP.
As acknowledged by the Minister, the Tribunal’s description of the search being ‘rigorous’ could have been differently expressed. However, the Court is not satisfied that there was no basis (or evidence) for the Tribunal to say that the police were searching for (or pursuing) him.
The Minister referred to the following extracts from the transcript:
At T1, 13.37-46: Interpreter (first applicant): And then in 2013, November 6, there was a false case brought into my name that I have – (not-transcribable) - in the when BNP was and I did some destruction of BNP office. This was all false and when he lost the case against me and that day police came to my house and there’s no record of that day when someone lodged a case against you saying the police visit in your house? We don’t have this type of record but it has happened in, like, this and I asked my friend, I may involve my friend to get the information and got the information that this is [Mr Kamal], [Mr Kamal] behind this, [Mr Kamal] is there, and the police people they are Mr Kamal’s – under Mr Kamal’s influence. They did this.
At T1, 13.48-49: Interpreter (first applicant): The police came to my house and looking for me, and asking about my whereabouts and I started living in hiding.
At T1, 15.2-3: Interpreter (first applicant): There was a further case brought against me, false cases, police was looking for and I was in hiding.
At T1, 16.10-13: Interpreter (first applicant): I wasn’t sure. I was not 100% sure at that time my warrant was there under my name or not. Same police, group of 10 people, 10 police people make. Those same people are looking for me, same police.
At T1, 22.19-23 Tribunal: What were you doing in those two months? Interpreter (first applicant): I was in hiding, and I was trying to contact her. I was trying to see her in the house, but I was in hiding. Everything I did, I am not to expose myself, and that is – that is the time I need to stay beside her the most, but I couldn’t. I couldn’t even comfort her properly.
The applicants submitted that the first applicant had in fact said that the police came to his house after the case against him was ‘lost’. While the word ‘lost’ appears in the transcript (at T1, 13.39) (extract above), this does not appear to accord with any of the other evidence in respect of that claim. Firstly, the transcript records the first applicant further stating that there was ‘no record of that day when someone lodged a case against you saying the police visit your house … but it happened like this’. This suggests that the first applicant speaking about the day the case against him was ‘lodged’ (not lost). Secondly, there is no evidence before me (nor have the applicants pointed any other evidence) which suggests that any of the cases the first applicant claimed were filed against him had been won or ‘lost’ whilst he was still in Bangladesh.
Even if the first applicant had said ‘lost’ (and not ‘lodged’ as speculated) it is of no moment because, on any view, the first applicant’s evidence was that on 6 November 2013 a false case was lodged against him, that police came to his house looking for him and that he started living in hiding. It was also his evidence that further false cases were brought against him, that the police were looking for him and that he was in hiding and that a group of ten police people came looking for him. He also gave evidence that (in the period between the assault on his wife and his departure from Bangladesh) he was in hiding and could not stay beside his wife to comfort her properly. A fair reading of the Tribunal’s reasons does not disclose that the Tribunal’s description of the evidence at [105] was inconsistent (or at odds) with the first applicant’s oral evidence.
The first applicant gave evidence that the police people (who were looking for him) were under the influence of Mr Kamal. The first applicant also gave evidence that Mr Kamal was the finance minister, that his ‘influence was all over the country’ and that he was ‘very powerful’ and ‘has a wide range of power’: T1, 24.31-32.
At [51], the Tribunal sets out the discussion with the first applicant as to how it was possible for him to depart Bangladesh legally in circumstances where he was wanted by the authorities in connection with open court cases. The applicants’ ability to depart Bangladesh was clearly an issue of concern for the Tribunal. The first applicant provided various explanations as to how he may have been able to depart legally, as did the Bangladeshi lawyer. The Tribunal considered those explanations at [104] and [105] of its reasons.

The Minister also relied on the DFAT report at paragraph 5.20 which provided:
The Department of Immigration and Passports conducts immigration checks and maintains a list of convicted criminals and persons wanted by security forces and intelligence agencies. The department mostly uses the list to determine whether to issue passports but may also use it to prevent people from leaving the country.
DFAT is aware of cases in which authorities have prevented both senior members of the BNP leadership and ordinary BNP members from leaving the country.
The Minister submitted that, given the country information and the first applicant’s own evidence about the power and influence of the person that was pursuing him, it was open for the Tribunal to assess that (if the first applicant was being pursued), that there might have been some alert set up at the airport and it was not a finding based on an unwarranted assumption. There is some force in this submission.
The country information indicated that a list of persons wanted by security forces and intelligence agencies may be used to prevent people from leaving the country, and there have been cases of the BNP leadership and ordinary BNP members being prevented from leaving. On his own evidence, the first applicant claimed that Mr Kamal (the finance minister of Bangladesh) had, for political reasons, caused false cases to be lodged against him and that the police, under the influence of Mr Kamal, were looking for him and he had to go into hiding. It was also the first applicant’s evidence that Mr Kamal was a very powerful person who had influence all over the country. In the context of this evidence, it cannot be said that the Tribunal’s statement (that the authorities at the airport would have been informed about the first applicant to stop him from leaving the country) was so illogical or unreasonable that no logical or reasonable decision maker could have made it.
Unlike the assumptions made in SZHYH, there was country information before the Tribunal which, when considered in combination with the first applicant’s own evidence, provided an intelligible justification for its statement.
As to the Tribunal’s consideration of the court and police documents, the applicants took issue with the Tribunal’s reliance on the UK and DFAT reports which indicated a significant (or high) prevalence of document fraud in Bangladesh, but did not specifically refer to court or police documents.
Whilst the relevant passages of the reports did not specifically refer to court or police documents, there was nothing in the reports which suggested that the documents specified were an exhaustive list of the types of documents that could be fraudulently obtained in Bangladesh. The word ‘including’ (in the UK report) plainly indicates that the listed documents were non-exhaustive. It was open for the Tribunal to rely on the country information, as part of its consideration of the evidence, to give no weight to the court and police documents.
The country information was not the only basis upon which the Tribunal doubted the veracity of the court and police documents. In oral submissions, the Minister referred to the Tribunal’s earlier rejection (at [102]) of the first applicant’s claim that he was being pursued by the person he claimed had filed false cases against him. The decision record discloses that, prior to its consideration (at [103] – [109]) of the first applicant’s claim about false cases being lodged against him, the Tribunal had considered the evidence before it in relation to the first applicant’s business dealings in Bangladesh and interactions with Mr Kamal. The Tribunal concluded that it did ‘not accept that Mr Kamal made further attempts to harm or punish the applicant following problems which occurred in respect of the rivalry over the property development incident’ (which occurred in 2007/2008). The Tribunal’s assessment of the evidence, when considered in totality, evinces its concerns about the first applicant’s claim that false cases, (initiated by Mr Kamal), had been lodged against him. In the circumstances, it was not irrational or unreasonable for the Tribunal to rely, in part, on country information to reject the court and police documents as being corroborative of the first applicant’s claim.
The Court is unable to discern any error on the part of the Tribunal in the way it considered the evidence given by the first applicant’s lawyer in Bangladesh or its emphasis on what it considered to be a discrepancy in the evidence about the length of time the lawyer had represented the first applicant.
The first applicant gave evidence that it was his lawyer in Bangladesh who collected the documents and sent them to him. He also requested the Tribunal to take evidence from the lawyer: see [60] of the Tribunal’s reasons. The Tribunal’s summary of the evidence at [107] was that:
As noted in the discussion above the applicant and his Advocate witness provided an inconsistent account of the length of their client relationship during the Tribunal hearing, with the Advocate claiming it commenced in 2016 and the applicant indicating it has been just six months or so.
The applicants’ submissions suggests that the first applicant had said he was not sure about the length of time whilst the lawyer (who would have had records) was certain. The relevant parts of the transcript, however, indicate as follows:
At T1, 32.45 – 33.1 – .17:
Member: Sorry before I do that, I think I just wanted to a couple of things. So when did you hire Mr Al Amin as your the lawyer?
Interpreter (First applicant): One year ago.
Applicant: Six months, six, seven months, not one year exactly.
Member: Okay, And why did you choose him? How did you select him?
Interpreter (first applicant): i don't have much connection in Bangladesh at the moment, my friend gave me the name of this lawyer.
Member: Why did you engage him six months ago when the first case against you was brought in 2013? Why six months ago did you suddenly reach out to this lawyer and not before?
Interpreter (first applicant): I arrive in this country in 2014, but the 10 false case was lodged in 2013, I have taken, I have collected a document from the court about the case and that's it, I'm - I was here.
Member. So, why six months ago did you suddenly get a lawyer?
Interpreter (first applicant): I wanted to know my case and my 15 documents and the .. (not transcribable) .. of my case and everything, then I just discussed the matter with my friend, my friend you can go to this lawyer, and.. (not transcribable) .. for a check.
The Transcript discloses the following exchange with Mr Al Amin:
At T1, 33.45 - .47:
Member: So, how long have you been engaged as his lawyer?
Witness Al Amin: From 2016 I’m dealing with him, he is not in the country, he’s overseas.
The hearing at which the above evidence was given by the first applicant and the lawyer in Bangladesh took place in February 2019. The lawyer gave evidence that he had represented the first applicant since 2016, whereas the first applicant said it was ‘six or seven months, not one year’ ago. The Tribunal’s description of the evidence in that regard was a correct reflection of the evidence given by the first applicant and the Bangladeshi lawyer at the hearing.
The evidence concerning when the first applicant engaged the Bangladeshi lawyer to represent him was by reference to the period immediately prior to the hearing and not, as submitted by applicants, by reference to events which had taken place more than five years earlier.
The Tribunal’s approach and assessment of the evidence was not inconsistent with the principles articulated in BFH16 and BEL16 upon which the applicants relied.
As to the applicants’ contention that the Tribunal failed to explain the relevance of what it considered to be a discrepancy in the evidence, this is not made out. The Court accepts the Minister’s submission that the Tribunal had expressly explained the relevance (or significance) of the discrepancy. The transcript discloses the following exchange (T2, 26.4-17):
Member: Okay. There is another bit of information that I need to put to you, and that is that the witness advocate, Mohammed Al Amin, who we spoke to in the previous hearing, informed the Tribunal previously that he'd been representing you for about two years in respect of the cases brought against you. And that's relevant because it appeared to be inconsistent with what you told me, which was that you had only engaged him about six months ago to represent you ....
If I were to rely on that information, I might find that your and/or Mr Amin's evidence is not reliable, which could lead me to reject your claims and affirm this decision. So, again, I invite you to comment or respond - comment on or respond to this information. If you need more time to do so you can tell me and I will consider that request.
The applicants requested that the Tribunal take evidence from the first applicant’s lawyer (whom they indicated would provide corroborative evidence about his claims). The Court accepts, as submitted by the Minister, that if the Tribunal had received conflicting evidence about the nature and duration of their relationship, then it was open for it to call into question the veracity of the evidence and corroborative material provided.
The reasons plainly disclose that the Tribunal had concerns about the conflicting evidence given by the first applicant and the lawyer in Bangladesh which it considered undermined the first applicant’s claim that false cases had been lodged against him in Bangladesh. Those concerns were raised with the first applicant at the hearing and the applicants were given the opportunity to respond to those concerns. At [107], the Tribunal said it considered the oral and written responses to this concern but, for the reasons it gave, it remained unconvinced of the veracity of the evidence. This concern formed, in part, a basis for the Tribunal to doubt the veracity of the letters from the Bangladeshi lawyer and his oral evidence at the hearing, resulting in the Tribunal giving that evidence no weight.
The Tribunal’s reasons do not imply (nor can it be inferred), as submitted by the applicants, that the lawyer in Bangladesh had fabricated evidence or been involved in some kind of professional misconduct. This was not an inquiry that the Tribunal made, nor was it necessary, for the Tribunal to question the lawyer about his credentials as a legal professional in Bangladesh before deciding to give his evidence (which was proffered as being corroborative of the first applicant’s claim) no weight.
The weight given to evidence was a matter for the Tribunal. No unreasonableness or illogicality is disclosed in the Tribunal’s approach or in the manner it assessed the corroborative evidence given by the Bangladeshi lawyer. The Tribunal’s reasoning in that regard did not lack an evident or intelligible justification.
A fair reading of the reasons demonstrates that the Tribunal had regard to the evidence before it relevant to the first applicant’s claim that false cases had been filed against him. The Court is not persuaded, for the reasons given above, that the Tribunal’s assessment of the evidence was attended by illogicality or unreasonableness. Nor can it be said that the Tribunal’s conclusion (that there were no false cases filed against the first applicant as claimed) were not open to it on the evidence before it for the (cumulative) reasons it gave.
For these reasons, ground one does not establish jurisdictional error.
Ground two
By ground two the applicants contend that the Tribunal’s assessment of the evidence and its finding in respect of the motivation for the second applicant’s sexual assault was unreasonable.
The evidence given by the second applicant about the motivation behind the sexual assault was contained in her statutory declaration and oral evidence to the Tribunal. At the second hearing, the second applicant gave evidence that her attackers had repeatedly asked her ‘where is [the first applicant]’ (T2, 15.43) and that from their conversation she understood that they were the ‘people from [Mr] Kamal’ (T2, 16.5-10).
The applicants also took issue with the Tribunal’s observation that neither the hospital report nor the letter from the doctor who treated her at home made any mention of ‘the circumstances in which the rape occurred’ and submitted it was irrelevant as no reasonable Tribunal could have expected that medical reports would contain such non-medical details, even if the victim of such a brutal sexual assault would have provided them.
It was submitted that the Tribunal gave no reason for finding that the second applicant was not telling the truth, other than its assessment of the first applicant’s claims and that in so doing it did not correctly assess whether the second respondent was telling the truth as to the motivation behind the sexual assault or whether her evidence in this regard corroborated the first applicant’s claims of political persecution. It was submitted that no finding had been made by the Tribunal that the first applicant had ‘thoroughly lacked credibility’ and had ‘misled the Tribunal’ by lying in a way that would have ‘poisoned the well’, as explained by the High Court explained in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [48]-[49] (S20/2002).
The applicants relied upon BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, where the Full Federal Court said at [45] that:
[…] it is true that the High Court held in S20/2002 that it is not irrational (albeit not necessarily preferable) for the finder of fact to focus “first upon the case as it was put by the appellant”, before considering the alleged corroboration. However, this does not mean that the finder of fact can ignore the allegedly corroborative material and fail to consider it in an intellectually active way.
The applicants also relied upon WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 (WAIJ) wherein Lee and Moore JJ at [27] described the outright rejection of allegedly corroborative evidence as ‘an exception’, requiring ‘cogent material to support a conclusion that the appellant has lied’. Their Honours said:
However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error.
The applicants submitted that the Tribunal failed to engage in an intellectually active way with the corroborative evidence of the second applicant concerning the details of the sexual assault, and failed to ask whether, if she was telling the truth, her testimony was corroborative of the first applicant’s claims.
The Minister’s submission
The Minister submitted that the Tribunal’s decision demonstrates that its consideration of the claims and evidence amounted to active intellectual engagement. It was submitted that it was open to the Tribunal to conclude that the claimed motivation for the assault was not corroborated and that the evidence from the hospital was a record of the second applicant’s views and not an independent opinion.
Consideration of ground two
The Tribunal was prepared to accept (at [111]) that the second applicant was a victim of a sexual assault, however, it did not accept that the assault was politically motivated on account of the first applicant’s BNP affiliations or due to his business dealings given the timing of the attack.
The applicants take issue with the Tribunal’s consideration of the second applicant’s evidence concerning the motivation behind the sexual assault and allege that the Tribunal failed to intellectually engage with the second applicant’s corroborative evidence.
The principles relevant to the consideration (or rejection) of corroborative evidence can be drawn from the following authorities, some of which have been relied upon by the applicants:
·In S20/2002, Gleeson CJ at [12] said:
… The essence of the complaint is that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the Tribunal’s reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant’s story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
McHugh and Gummow JJ at [49] said:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
·In WAIJ, Lee and Moore JJ at [27] said:
Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied … it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225 at [82]–[85] per McHugh, Gummow and Hayne JJ.
·In Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 (‘SZNSP’), North and Lander JJ (Katzmann J agreeing) said:
[30] We do not agree with the contention that it is necessary to find expressly that a party has lied before concluding that a piece of evidence which might corroborate the party’s account should be rejected. We do not read McHugh and Gummow JJ as saying that a precondition to the exercise which is described at [49] of their reasons is a finding that the party who is tendering the corroborative evidence in support of the party’s evidence has lied.
….
[36] When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand.
…
[37] Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.

The Court accepts the applicants’ submission that this was not a case of the ‘well [having] been poisoned beyond redemption’: S20/2002 at [49]. However, it was not necessary for the Tribunal to have concluded that the first applicant ‘thoroughly lacked credibility’ or that he had ‘misled the Tribunal’ by lying before it could reject the corroborative evidence of the second applicant: SZNSP at [30].
It was open for the Tribunal to reject the evidence of the second applicant which would, if accepted, have corroborated the first applicant’s claims: SZNSP at [30], [36]. However, the Tribunal was still required to consider, in an active intellectual way, the nature, content and quality of the corroborative evidence, and assess and weigh it in the balance of all the other evidence: SZNSP at [36], [38].
It was also not necessary for the Tribunal to make findings that the second applicant was not a credible witness or was not telling the truth, before rejecting her corroborative evidence. Indeed, the Full Court has discouraged the Tribunal from finding that an applicant for a protection visa has lied: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [24].
This was not a case where the Tribunal had ignored or failed to consider, in an active and intellectual way, the evidence and material in support of the claim that the second applicant was sexually assaulted because of the first applicant’s political affiliations. The Tribunal’s reasons demonstrate that it had regard to the second applicant’s evidence, including the oral evidence given at the hearing about the circumstances of the sexual assault and the motivation behind it. The Tribunal noted at [111] that the supporting material provided in respect of the sexual assault was based upon the second applicant’s own account of events provided to the medical professionals who treated her and the reports given in support of the protection application. The Tribunal considered the letter from Dhaka hospital and the letter and oral evidence of Dr Ali (who treated the second applicant at home), but it was not satisfied that they substantiated the claim that the sexual assault was for politically motivated reasons. The Tribunal did not suggest that the letters should have included information about the motivation for the sexual assault, it merely observed that they did not contain such information. No error is disclosed in the Tribunal’s evaluation of the evidence. Nor can it be said that there was a failure on the part of the Tribunal to actively intellectually engage with second applicant’s claims and evidence.
It cannot fairly be said that the Tribunal simply refused to consider the second applicant’s potentially corroborative evidence because of its prior findings as to the first applicant’s claims: SZNSP at [38]. The Tribunal did have regard to the nature, quality and content of the evidence. In rejecting the second applicant’s claim that the sexual assault was politically motivated, the Tribunal also relied upon its earlier findings in respect of the first applicant’s claims about his BNP affiliations, his business dealings in Dhaka, and false cases being brought against him.
Given its assessment of the evidence in respect of the second applicant’s claims and its earlier findings concerning the first applicant’s claims, it was not legally unreasonable for the Tribunal to reject the second applicant’s claim that the sexual assault was politically motivated.
In considering the timing of the sexual assault (November 2013) and its earlier findings about the first named applicant’s political involvement and business dealings with Mr Kamal, it was open for the Tribunal, for the reasons it gave, to reject the claim that the second applicant was sexually assaulted on account of the first applicant’s BNP affiliations or due to his business dealings.
Ground two does not establish jurisdictional error.
Ground three
By ground three the applicants contend that the Tribunal’s assessment of relocation was unreasonable, as there was no rational basis for finding that the information about the second applicant’s sexual assault would not become known outside Dhaka.
It was contended that the Tribunal's speculation about the ‘leaking’ of the information by family members or others who may have become aware of the assault was a further example of unwarranted assumptions made (without supporting evidence) about the behaviour of third parties. The applicants contend that no reasonable Tribunal could have simply discounted the possibility of information about the assault reaching other parts of the country where the couple might arrive as strangers whose backgrounds could become the subject of gossip, speculation and inquiry.
It was submitted that the Tribunal barely raised the issue of relocation with the second applicant, who was the one most likely to suffer from social stigma, although when it did the second applicant said she ‘didn't have that much strength to relocate’ (T2, 15.1). When the issue was raised with the first applicant (T2, 23.41-24.12) he said that ‘the stigma will follow her’ and would impact also on their daughter, and that in Bangladesh ‘no one wants other people's welfare or benefit’ and if anybody knows something they call other people, who call other people. The applicants also took issue with the Tribunal’s response that ‘[it] just cant’s see how that will happen’: T2, 24.12.
The applicants submitted that while it is well established that a decision cannot be said to be unreasonable if ‘reasonable minds might differ’, the minimum standard for measuring reasonableness in evaluating protection visa claims must be a higher one than that of the fabled ‘man on the Clapham omnibus’: SZMDS at [131] per Crennan and Bell JJ. It must instead be that of a reasonable person or body in the position of the decision maker. The applicants relied upon Minister for Immigration v Eshetu [1999] HCA 21, wherein Gummow J at [139] identified the question to be decided in judicial review of a visa application as:
[…] whether a decision-maker in the position of the Minister under s 65(1) of the Act reasonably could have formed the opinion as to satisfaction of statutory criteria upon which jurisdiction depends […]
The applicants argue that the Tribunal's response that it ‘just couldn't see how it could happen’ displays a lack of imagination that must fall well below the standard of reasonable intellectual engagement required of a person in the position of a Member of the Tribunal tasked with assessing applications for review dealing with protection visa claims, which could involve ‘matters of life or death’: Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1-2021) per Edelman J at [51] and [52].
The Minister’s submission
The Minister submitted that the Tribunal’s reasons did not lack a rational foundation or intelligible justification. It was submitted that the Tribunal expressly considered the implications of the second applicant’s sexual assault, including the likelihood of the details of sexual assault spreading beyond the applicants’ locality in Dhaka (at [137]-[139]). It was submitted that in doing so, the Tribunal found:
(a)At [137], that the only people in Bangladesh who were aware of the assault were the applicants’ family members and the medical professionals who treated the second applicant;
(b)At [138], that the applicant’s family members would not have anything to gain by sharing the news of the assault outside their immediate family members;
(c)At [138], that there was not a real chance that the medical professionals involved in the second applicant’s treatment would break her confidence; and
(d)At [139], even if the news did ‘leak’ by way of the applicants’ family members or the relevant medical professionals, it was unlikely that the applicants’ circumstances would become publicly known in other parts of the country.
It was submitted that the Tribunal’s findings in respect of relocation were cogent and open to it on the evidence. It was submitted that the transcript of the hearing did not indicate that the applicants provided any persuasive reason why the details of the second applicant’s sexual assault would spread across Bangladesh, and that it was reasonable for the Tribunal to, for the reasons it gave, find that the option of relocation was open to the applicants.
Consideration of ground three
Ground three, as advanced, takes issue with the Tribunal’s finding that if the ‘news’ about the second applicant’s sexual assault was leaked by family members and/or the medical professionals involved then any associated risk of stigmatisation and/or ostracism would be restricted to the locality of Dhaka. The applicants contend that the Tribunal made an unwarranted assumption about how third parties, being the applicants’ family members who were aware of the assault (excluding perhaps medical professionals) would behave and that it was unreasonable for it to discount the possibility that information about the assault would be known in other parts of the country.
It was also contended that the Tribunal ‘barely’ raised the issue of relocation with the second applicant and that its consideration of the applicants’ evidence about relocating to another area of Bangladesh was unreasonable.
The impugned reasoning relates to the Tribunal’s consideration (at [137] – [143]) of the claim that the applicants would experience stigma and/or ostracism in Bangladesh because of the second named applicant’s sexual assault. The Tribunal considered the evidence of the applicants that they had not been treated well by their families, that the first applicant was blamed for the assault on the second applicant, and that there was jealousy in the family that could possibly lead to the ‘news’ (about the second applicant’s assault) spreading.
In considering these claims, the Tribunal was prepared to accept that the applicants may be estranged from their respective families (who had knowledge of the second applicant’s assault), but it was not persuaded that they would share the ‘news’ about the second applicant’s assault. The Tribunal was not so persuaded because, on the available evidence, it doubted that the respective families would have anything to gain by sharing the news of the assault outside their immediate family members. As to the medical professionals who also had knowledge of the assault, the Tribunal did not consider that they would breach the confidence of the second applicant.
The assumption which is said to be unwarranted relates to the conduct of family members (and, to a lesser extent, medical professionals) and how they would behave upon the applicants’ return to Bangladesh. The applicants have not explained how (or why) the assumption (that it was unlikely immediate family members/medical professionals would spread the ‘news’ about the sexual assault) lacked rational foundation or logical coherence. It cannot, in the Court’s view, be said that the assumption was blatantly contrary to common knowledge or common human experience or the material available. The Court is not satisfied that the assumption made by the Tribunal was one which no reasonable decision maker could have made.
Notwithstanding its finding that the applicants’ family members would have nothing to gain by leaking information about the assault and medical professionals would not breach confidentiality, which the Court considers was open to the Tribunal and would have been dispositive of that claim, the Tribunal went on to consider what if it were wrong and the information about the second applicant’s assault was leaked. In considering this circumstance, the Tribunal found that any associated risk of stigmatisation and/or ostracism caused by the leaking of the information would be confined to Dhaka.
The Tribunal appears to have accepted that the harm feared by the applicants (in the event the information about the assault was leaked) would be the risk of stigmatisation and/or ostracism, however, it did not make any finding about whether this would amount to serious or significant harm. At the hearing, I asked the parties if this disclosed any issue with the Tribunal’s reasons and whether the Tribunal needed to first make a finding about whether applicants would face serious or significant harm in Dhaka before considering the issue of relocation. The applicants’ response, as understood, was that the Tribunal’s reasoning was in any event erroneous because of how it dealt with the relocation issue. The Minister submitted that the Tribunal considered the applicants’ claims and found that they would not face a real chance of serious harm or real risk of significant harm, nor was there a finding by the Tribunal that social stigma or ostracism would amount to serious harm. The Minister contended that, in view of the Tribunal’s findings, any error in relation to relocation would therefore be immaterial. The Court does not entirely agree with either view.
In the Court’s view, it was probably not necessary for the Tribunal to consider the issue of relocation in light of its findings that the applicants’ families had nothing to gain by sharing the information about the second applicant’s assault and that medical professionals would not breach confidentiality. The Tribunal nevertheless decided to consider what if it were wrong about what could occur in future (upon return to Dhaka) in the event information about the assault was leaked. There was no error in the Tribunal proceeding in this way.
At [139] of its reasons, the Tribunal appears to have accepted that if it were wrong about the leaking of the information then there may be an associated risk of stigmatisation and/or ostracism. The Tribunal did not consider whether that risk amounted to serious harm, but it appears from its conclusion at [143], in which it stated that the applicants could reasonably relocate to other parts of Bangladesh in the event they were stigmatised, socially ostracised, or ‘otherwise seriously harmed’ on account of the second applicant’s previous sexual assault, that it had considered the issue of relocation on the basis that the applicants may face serious harm in Dhaka if information about the sexual assault was leaked.
In proceeding this way, the Tribunal was required (as part of its ‘what if I am wrong’ considerations) to consider the issue of relocation. In considering the issue of relocation, the Tribunal was also required to consider whether it was reasonable, in the sense of practical, having regard to the particular circumstances of the applicants and the impact upon them of relocating to an area (other than Dhaka) in Bangladesh: SZATV v Minister for Immigration and Citizenship [2007] HCA 40 at [24].
The applicants contend that the Tribunal barely raised the issue of relocation with the second applicant. In so far as the applicants allege a failure on the part of the Tribunal to afford the second applicant procedural fairness and/or that she was not afforded a real and meaningful opportunity to provide evidence about an issue in the review, this is not made out. The transcript plainly discloses that the Tribunal discussed the issue of relocation with the second applicant at the hearing:
Member: Okay. So, you said that your family didn't treat you well after that incident. But why couldn't you go with your husband or your family to another part of Bangladesh where obviously nobody will know what has happened to you?
Interpreter Second Applicant: Well, because he has a - he has case against him. And there was a warrant against him. And I was mentally so distressed, and I didn't have that much strength to relocate another place without support
Member: I'm talking about now, though. If you were to go back now.
Interpreter Second Applicant: If I have to go back now, then if you get arrested, then what I will do? What would happen to me and my child? I've got no one. No support.
Member: Are you in contact - is your husband in contact with his family?
Interpreter Second Applicant: But- yes. He has, but very rare. Very rare communication, because he - my husband is fearful if you make contact with them, and if other people knows, they might - might - my in-law might get in trouble.
Member: Okay, but they don't have any ill will towards you or he?
Interpreter Second Applicant: Do you mean my in-laws?
Member: Yes, your in-laws.
Interpreter Second Applicant: They - they are actually fearful. They are very old and fragile. If someone comes and ask about our whereabouts, they get nervous.
Member: My question is, if - would they not provide you - would they provide you with any support if you went back? Are they also - have they also turned against you, as you say your own family have?
Interpreter Second Applicant: How they're going to provide me support? They are also - they are dependent themself to others. They're old.
The transcript of the exchange plainly demonstrates that the Tribunal asked the second applicant why she and the first applicant could not relocate to another part of Bangladesh where no one would know what happened to her. When the second applicant indicated that she would have no support, the Tribunal sought to gauge the level of support that the applicants’ families (who reside in Dhaka) may be able to provide the applicants upon their return. It cannot be said that the issue of relocation was not raised with the second applicant at the hearing. The Court is satisfied that the second applicant was afforded a meaningful opportunity to provide evidence at the hearing about the issue of relocation.
The Tribunal’s decision at [140] also discloses that the applicants’ representative made submissions on their behalf regarding the practical difficulties of relocation, including that the applicants were a small family with a young child and that the second applicant was suffering from psychological trauma as a result of the assault. The Court is satisfied that the second applicant was afforded the opportunity to provide evidence in relation to the issue of relocation and that no procedural unfairness arises in that regard.
The Tribunal’s decision discloses that it had regard to the circumstances of the applicants, including the matters raised by them concerning practical (and other) difficulties they may encounter if they had to relocate within Bangladesh. Following its consideration, the Tribunal concluded at [143] that the applicants could reasonably relocate to another part of Bangladesh to avoid the harm they feared, which it had earlier found would be restricted to their locality in Dhaka. No error is disclosed in the Tribunal’s consideration of the applicants’ circumstances and the matters raised by them about the difficulties they may encounter if they had to relocate.
As to the applicants’ contention that the Tribunal’s ‘lack of imagination’ (as to how information about the second applicant’s sexual assault could reach other parts of Bangladesh) was a failure on its part to reasonably intellectually engage with the evidence, this is also not made out. The Tribunal was not required to ‘imagine’ or consider all the possible scenarios in which the information about the assault could be divulged or spread across Bangladesh. On the evidence available to it, the Tribunal considered it unlikely that the applicants’ circumstances would become publicly known in other parts of Bangladesh unless they themselves revealed that information. This was not a finding that lacked rational foundation or intelligible justification, nor can it be said that it was not a finding that a reasonable decision maker (upon the material before it) could have made.
Ground three does not establish jurisdictional error on the part of the Tribunal.
Ground four
By ground four the applicants contend that the Tribunal had failed to consider the applicants’ claim (which was clear on the evidence) that they would be ‘emotionally and psychologically damaged’ if any harm came to their daughter. The applicants allege that the Tribunal refused to consider the claims relating to the daughter because she was not a party to the review.

By way of background, the applicants' daughter was born in Australia after the delegate's decision had been made and could therefore not be included as a party to the review in the matter before the Tribunal.
It was submitted that they had expressed concern that their daughter could be sexually assaulted in Bangladesh, not only in relation to the first applicant's claims, but because of the general level of sexual and gender-based violence in Bangladesh: T2, 14.35-37, 27.46-28.1, 29.1-6, CB 341 at [6]. It was submitted that while the Tribunal referred to these claims at [36] and [38], it insisted (at [122] and [123]) that they could only be considered in relation to the second applicant and not the daughter because she was outside the scope of the review.
It was also contended that the Tribunal failed to comprehend that any danger that their daughter would be the victim of such violence would inevitably cause ‘extreme emotional pain and suffering’ to the applicants such that the Tribunal failed to cumulatively address all the elements of the claim, thereby failing to complete the exercise of its jurisdiction: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 per Merkel J at [7] and Allsop J (as he then was) at [42].
The Minister’s submission
The Minister submitted that the Tribunal is only required to consider claims which are ‘clearly articulated’ or that ‘clearly emerge’ from the material before it: DKY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1166 at [56]; citing Plaintiff M1-2021.
The Minister submitted that the second applicant claimed to fear harm on the basis of her mental health generally due to the constant fear she would have upon return. The Minister contended that no specific claims were raised by the applicants in respect of the fear that would arise from harm to the applicants’ daughter. It was also suggested that the claim did not clearly emerge from the material. It was submitted that the Tribunal at [126] – [131] expressly considered the applicants’ claims regarding their mental health and found that the second applicant’s fears were unsubstantiated and that the applicants would have access to adequate mental health services in Bangladesh: [126]-[131].
The Minister further submitted that, in any event, notwithstanding that the applicants’ daughter was not a party to the review, the Tribunal still considered (at [132]) whether she would suffer the harm feared (as raised by the applicants), but was not satisfied that she would suffer the harm claimed upon her return to Bangladesh. The Minister contended that there was no need to consider those claims in the context of the applicants’ mental health which the Tribunal had addressed separately at [126] – [131].
Consideration of ground four
Firstly, the Tribunal was correct in stating at [112], [123] and [132] that the applicants’ daughter was not a party to the review. The applicants’ daughter was born after the delegate made the decision to refuse to grant the applicants protection visas. Accordingly, there was no primary decision made in respect of their daughter. In the circumstances, the applicants’ daughter did not have standing to be included in the review application: s 412(2) of the Act.
Notwithstanding, the Tribunal was still required to consider any claims made by the applicants in relation to their daughter and determine whether those claims (if accepted) provided a basis for establishing that the first and/or the second applicant were persons in respect of whom Australia had protection obligations.
The parties agree (in principle) that the Tribunal has an obligation to consider all the claims (including integers of claims) made by the applicants, though it is only required to consider claims which were expressly made or those which arise squarely on the material.
The applicants allege that the Tribunal failed to consider their claim about the extreme pain and suffering they would experience if their daughter was sexually assaulted due to gender based violence in Bangladesh.
The applicants referred to the evidence provided to the Tribunal in respect of that claim. Relevantly, in a statutory declaration (CB 341), the second applicant stated:
5. In addition, I recently got a baby girl, and fear that my girl also would become a victim of sexual assault by the Awami League people who has a monster mentality to inflict irreparable harm to their enemy.
6. Since the last election in Bangladesh (30 December 2018), my mental health issues further aggravated because the Awami League came to power again and I fear I would not be able to get any sort of protection from Bangladeshi authorities now or in the foreseeable future. I fear my daughter would become a street child and would be exploited sexually, if we returned to Bangladesh because we have a genuine fear that both would be targeted and killed in Bangladesh.
At the hearing, the Tribunal asked the second applicant about these claims (and her fear from the Awami League people) and remarked that there was no evidence to support that such a young baby girl would be targeted for this type of attack. In response, the second applicant said ‘in Bangladesh, it’s very common, and one and a half, two years child – there- they could be targeted. It’s very common. And not only targeted. They can, like, kill them’: T2, 14.22-37.
In submissions to the Tribunal, the applicants’ representative said that the Awami League, including the powerful businessman that the first applicant challenged, were in power, that the applicants were vulnerable and that the applicants feared that their daughter would also suffer sexual violence if she had to return to Bangladesh: T2, 27.46-28.1 and 29.1-6.
Even though the Tribunal indicated at [123] that it had only considered the claim of physical and sexual violence generally in respect of the second applicant only, as the daughter was not a party to the review, a fair reading of the Tribunal’s decision plainly demonstrates that it still had regard to the claims (as raised by the applicants) in respect of the fear they had for their daughter. At [132] the Tribunal stated:
Whilst the applicants’ daughter is not a party to these proceedings, for completeness the Tribunal notes the submission that she would become a street child and would be exploited sexually. The Tribunal understands this claim to be linked to the second named applicant’s fears that her husband will be arrested and jailed on return to Bangladesh thereby leaving her and her daughter vulnerable to homelessness and physical harm. As the Tribunal has rejected this possibility it does not accept that the second named applicant and her daughter will find themselves in such a situation. The Tribunal does not accept the applicants’ daughter will become a street child or be exploited sexually if the applicants return to Bangladesh for this reason.
At [124] the Tribunal acknowledged the country information before it which indicated that rape, sexual harassment and other forms of gender-based violence against women occurs frequently in Bangladesh. The Tribunal’s consideration of this information (albeit only in respect of the second applicant) preceded its consideration of the claims in relation to the applicants’ daughter. When it came to considering the claims made in relation to the daughter, the Tribunal considered (in the same way it considered the claims in respect of the second applicant at [124]) that the claimed fear (of gender-based violence) related to the vulnerabilities (of the second applicant and her daughter) if the first applicant is arrested and sent to gaol upon their return to Bangladesh.
In its reasons (at [132]), the Tribunal relied on its earlier findings in which it rejected the claim that first applicant would be arrested and gaoled upon return to Bangladesh.
In its earlier finding (at [124]), the Tribunal, having rejected the claim that the first applicant would be arrested on return to Bangladesh, found that the second applicant would have the continuing support and protection of her husband.
A fair reading of the Tribunal’s decision (in its entirety) discloses that the Tribunal did comprehend the claims being made in respect of the applicants’ daughter, including the fear expressed that she may suffer gender-based violence upon return to Bangladesh. The Tribunal considered that claim (as it arose on the material before it, in the context of the fear about what would happen to the first applicant) but concluded, having regard to its earlier reasons and findings, that the applicants’ daughter would not experience the harm feared. The Court accepts the Minister’s submission that, in the context of that finding, the need to consider the applicants’ mental health did not arise.
In any case, the mental health claims (as raised by the second applicant) were plainly considered by the Tribunal at [126] – [131]. No error is disclosed in respect of the Tribunal’s consideration of the evidence before it in that regard.
Ground four does not establish jurisdictional error.
COSTS
The Minister sought an order that the applicants pay the Minister’s costs fixed in the sum of $5,400. The applicants did not object to this amount.
CONCLUSION
As none of the grounds advanced by the applicants establish jurisdictional error, the application for judicial review must be dismissed.
There is no reason why costs should not follow the event. Accordingly, the Court will order that the applicants pay the Minister’s costs of the proceedings fixed in the sum of $5,400.

I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.
Associate:
Dated: 17 March 2025

File number(s):	SYG 929 of 2019
Judgment of:	JUDGE SKAROS
Date of judgment:	17 March 2025
Catchwords:	MIGRATION – Judicial Review – Protection Visa – Bangladesh – Political persecution – Sexual assault – Relocation - Unreasonableness - Unwarranted assumption – Consideration of corroborative evidence – Failure to consider a claim – Application dismissed with costs
Legislation:	Migration Act 1958 ss 36, 65, 412, 424AA
Cases cited:	ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 BEL16 v Minister for Home Affairs [2019] FCA 1678 BFH16v Minister for Immigration and Border Protection [2020] FCAFC 54; (2020) 274 FCR 532 BJI18 v Minister for Home Affairs [2019] FCA 266 BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729 BOH17 v Minister for Immigration, Citizenship & Multicultural Affairs[2023] FCA 573 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 DKY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1166 FPA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 770 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 Minister for Home Affairs v Omar (2019) [2019] FCAFC 188; (2019) 272 FCR 589 Minister for Immigration & Border Protection v Sabharwal[2018] FCAFC 160 Minister for Immigration & Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 Minister for Immigration v Eshetu [1999] HCA 21 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 SZHYH v Minister for Immigration & Border Protection (No 3) [2019] FCA 589; 194 ALR 676 SZNYF v Minister of Immigration and Citizenship [2010] FCA 839 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
Division:	Division 2 General Federal Law
Number of paragraphs:	185
Date of hearing:	13 February 2025
Place:	Parramatta
Solicitor for the Applicants:	Mr Jones, Michael Jones Solicitor
Solicitor for the First Respondent:	Mr Dennis, Mills Oakley
Solicitor for the Second Respondent:	Submitting appearance, save as to costs

SYG 929 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	BNY19 First Applicant BNZ19 Second Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE SKAROS
DATE OF ORDER:	17 MARCH 2025