BZN19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1000
•2 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BZN19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1000
File number(s): SYG 1208 of 2019 Judgment of: JUDGE KAUR-BAINS Date of judgment: 2 July 2025 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – Protection (Class XA) Visa – whether the Tribunal failed to perform the statutory task imposed on the Tribunal under s 414 of the Migration Act 1958 (Cth) – whether the Tribunal denied the applicants procedural fairness by not putting the applicants on notice that the Tribunal may form the view the first applicant had “tailored” his evidence – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 5J, 65, 414, 430, 430(1) and 476 Cases cited: CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97
DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177; [2021] HCA 12
Firme v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 60
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196; [2024] HCA 2
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516; [2023] FCAFC 116
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Wingfoot Australia Partners v Kocak (2013) 252 CLR 480; [2013] HCA 43
Division: General Federal Law Number of paragraphs: 85 Date of last submissions: 18 June 2025 Date of hearing: 3 April 2025
21 May 2025Place: Sydney Counsel for the Applicants: Mr L Boccabella Solicitor for the Applicants: Mr P Pahalawela of Parish Patience Immigration Lawyers Counsel for the First Respondent: Mr D Hume Solicitor for the First Respondent: Mr A Sharma of HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1208 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BZN19
First Applicant
BZO19
Second Applicant
BZP19
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
2 JULY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.
2.The name of the Second Respondent is amended to “Administrative Review Tribunal”.
3.The Further Amended Application filed on 10 April 2025 is dismissed.
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 KAUR-BAINS
The applicants seek judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) dated 18 April 2019. The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicants a Protection (Class XA) Visa (protection visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
The applicants are citizens of Bangladesh. On 22 January 2016, the applicants applied for the protection visas (Court Book (CB) 1 to 178) and claimed to fear harm from the Awami League (AL) in Bangladesh, due to the first applicant’s political profile with the Bangladesh National Party (BNP) (CB 331 to 335). The first applicant is the primary applicant for the protection visa and the other applicants are members of the same family unit, whose claims are largely dependent on the first applicant’s claims.
This matter raises for determination the following issues:
(a)First, whether the Tribunal failed to perform the statutory task imposed on the Tribunal to review under s 414 of the Act, to form for itself on the material before it, the requisite state of satisfaction under s 65 of the Act in respect of the relevant criteria for protection visas. In this case, the applicants contended the Tribunal did not perform its statutory task in several ways, being that:
(i)the Tribunal’s pathway of reasoning lacked substance as the Tribunal failed to make findings of fact and merely identified “concerns” and referred to the evidence of the first applicant being “vague”;
(ii)the Tribunal misunderstood and misapplied the term “relevant consideration”; and
(iii)in analysing the evidence, the Tribunal failed to properly evaluate the evidence and assess the credibility of the first applicant, and did not appreciate and take account of the difficulties in evidence received through an interpreter.
(b)Second, whether the Tribunal denied the applicants procedural fairness by not putting the applicants on notice that there was a potential issue the first applicant “tailored” his evidence on the go.
For the reasons which follow, I find the applicants have not demonstrated jurisdictional error.
TRIBUNAL’S DECISION
The applicants attended two tribunal hearings assisted by their legal representative, Ms Rina Szmej of Sharah Henville Lawyers, and a Bengali interpreter.
Protection claims
The Tribunal at [7] and [8] of its reasons noted the applicants’ claims for protection visas as follows:
[7]The first-named applicant ….claims to fear harm arising from his support for the opposition Bangladesh Nationalist Party (BNP), and his active membership. He claims that his business partner is a supporter of the ruling Awami League (AL) who illegally seized his share of a business; and AL cadres have threatened him and his family. He also claims that the police arrested, detained and injured him during various protests, and they have now brought politically motivated criminal charges against him. He fears that the Bangladesh authorities, acting on behalf of the AL, will arrest, imprison, mistreat and perhaps kill him on his return to Bangladesh. He also fears that AL cadres will abduct, mistreat and possibly kill him, with impunity. They will do so because of his past profile and his ongoing political activities, including with a BNP group in Australia.
[8]The second- and third-named applicants, the applicant's wife and young son, claim to have faced threats and harassment because of their association with the applicant. They claim to fear persecution on the basis of an imputed political opinion; and/or to be at risk of significant harm.
For the reasons set out in its decision, the Tribunal did not accept that if the first applicant returned to Bangladesh, now or in the reasonably foreseeable future, there was a real chance he would face serious harm amounting to persecution for reasons of his political opinion if he decided to invest in or establish a business, or for any other reasons set out in s 5J(1) of the Act ([141] and [142] of the Tribunal’s reasons).
The Tribunal noted that the first applicant’s wife and child essentially relied on the membership of the same family unit as the first applicant. However, the Tribunal noted the second and third applicants also claimed protection based on imputed political opinion arising from their relationship with the first applicant. The Tribunal noted the applicants’ representative’s submissions dated 17 October 2018, that in Bangladesh “a wife has to live with the consequences of her husband’s conduct and political beliefs at a personal cost to the wife or their children” ([143] of the Tribunal’s reasons). The Tribunal concluded there was no real chance of persecution for the second and third applicants based on its findings regarding the first applicant's claim ([144] of the Tribunal’s reasons).
I have analysed the Tribunal’s decision in greater detail below, having regard to the applicants’ grounds for judicial review.
GROUNDS IN THE APPLICATION
The applicants rely on the following three grounds of judicial review raised in the application headed “Further Amended Application” accepted for filing on 10 April 2025 (as per original):
Ground 1 The AAT decision did not meet the standards set out in paragraphs [24],[25] and [27] in Plaintiff MI v Minister for Home Affairs [2022] HCA 17
Ground 2 The AAT failed to conduct a proper review
Ground 3 The AAT failed to properly accord the applicant procedural fairness
PROCEEDINGS BEFORE THIS COURT
The applicants were represented at the hearing before me by counsel, Mr Boccabella. The Minister was represented by counsel, Mr Hume. I have had two hearings in this matter to ensure that each party had an opportunity to address the issues raised.
Applicants’ written submissions
The applicants relied upon four sets of submissions, which were accepted for filing on 18 March 2025, 2 April 2025, 15 May 2025 and 10 June 2025, as well as the oral submissions of Mr Boccabella at the two hearings before this Court on 3 April 2025 and 21 May 2025.
Evidence sought to be read by the applicants
The applicants sought to read into evidence the affidavit of Prasad Pahalawela, solicitor, affirmed on 16 January 2025, annexing a copy of the transcript of the hearing before the Tribunal. That affidavit was read without objection and formed part of the evidence before this Court.
I made clear to the parties that I would not be analysing the transcript to assess the evidence given before the Tribunal, unless the parties specifically took me to parts of the transcript to make a particular point, which went to a jurisdictional error ground.
The applicants also sought to read the affidavit of Mr Pahalawela affirmed on 1 April 2025, which stated the following:
2.On this occasion, at the direction of Mr Boccabella of counsel, on 31 March 2025 I caused a review of the web address (URL address omitted) which contains the Australian Government directory listing the names of appointed members to the Administrative Review Tribunal in which Mr James Silva's name is not listed as a current member of the Administrative Review Tribunal.
3.At the direction of Mr Boccabella of counsel, on 31 March 2025 I caused a Google search using the phrase ‘James Silva Administrative Appeals Tribunal’. It brought up a LinkedIn entry which shows that Mr James Silva’s entry has that his qualifications are MBA.
Mr Boccabella sought to rely on the evidence noted in the preceding paragraph to support an argument that the Tribunal’s reasons were discursive, used generalities and did not meet the requirements that the Tribunal properly consider and give reasons. Mr Boccabella submitted that the member's non-legal background might be helpful for the Court in explaining the shortcomings in the Tribunal’s reasons (Hearing Date 3 April 2025 Tp 13.21-24, Applicant’s submissions dated 18 March 2025 at [33] to [38]).
I rejected the admission of the affidavit affirmed on 1 April 2025 (referred to at [15] of this judgment), on the basis that whether or not the member of the Tribunal was a lawyer was irrelevant to my analysis of the Tribunal's reasons and assessment of whether there was jurisdictional error.
Minister’s written submissions
The Minister relied upon his three sets of written submissions, which were accepted for filing on 19 March 2025, 1 May 2025 and 18 June 2025, as well as the oral submissions of Mr Hume. The Minister also tendered the Court Book, which consisted of two volumes and were marked “Exhibit R1”.
GROUNDS 1 AND 2
Grounds 1 and 2 in the application for judicial review, seek to impugn the Tribunal’s decision on the basis that there was a “failure to undertake a proper review”, being properly characterised as a failure to perform the statutory task imposed on the Tribunal to review under s 414 of the Act to form for itself, on the material before it, the requisite state of satisfaction under s 65 of the Act (Applicants’ post-hearing submissions dated 10 June 2025 at [2], Applicants’ further submissions in reply dated 15 May 2025).
The applicants contended that the Tribunal did not perform its statutory task in several ways, being that:
(a)the Tribunal’s pathway of reasoning lacked substance as the Tribunal failed to make findings of fact and merely identified “concerns” and made references to the evidence of the first applicant being “vague”;
(b)the Tribunal misunderstood and misapplied the term “relevant consideration”; and
(c)in analysing the evidence, the Tribunal failed to properly evaluate the evidence and assess the credibility of the first applicant, and did not appreciate and take account of the difficulties in evidence received through an interpreter.
For completeness, I note that at the resumed hearing on 21 May 2025, counsel for the Minister, Mr Hume contended that the applicants’ grounds 1 and 2 were founded on a complaint that the Tribunal breached s 430(1) of the Act. Mr Hume correctly pointed out that a failure to comply with s 430(1) did not of itself constitute a jurisdictional error, and in support of that proposition referred to the decision of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf) at [10] per Gleeson CJ, [69]. Mr Boccabella clarified that the applicants did not base grounds 1 and 2 on a complaint regarding the Tribunal's compliance with s 430(1) of the Act (Hearing Date 21 May 2025 Tp 17.7-40). Rather, Mr Boccabella submitted that the relevance of the s 430 obligation was that it may reveal the Tribunal had not performed its statutory task.
Applicants’ submissions
The applicant’s submissions in support of grounds 1 and 2 were summarised by Mr Boccabella as follows:
Well, what – if your Honour is agreeable, what I would prefer to do is to outline my submissions in general first, so that your Honour understands them, and that is that it’s my submission that the use of – the excessive use of the tribunal’s articulating issues as concerns were a distraction and of little value in identifying the pathway of reasoning to conclude either credibility or the relevant facts necessary to establish a protection claim. Allsop CJ in a case called Eros – I’ve set all this out in my submissions, but if I could just be discursive for the moment – stated that the use of the word “concern” is simply just not a finding. Now, obviously a tribunal member could use the word “concern” as part of the development of an argument, but the difficulty in this case – that it pervades the decision. I counted there were 25 times that the member uses the word “concern”. Now, what that means is that they, then, don’t develop into actual findings. A person can be concerned about something, but in the end, they’ve got to be actual findings
And similarly, as I set out in my reply, that the tribunal member uses the word “vague” or “vagueness” seven or eight times as I calculated crucially without setting out what it was that the applicant did that was vague. So a person cannot be pilloried on the grounds of vagueness if that’s not identified by the tribunal members. So we have these two strands running through, and they don’t, in the end, allow this court to determine how it comes to pass, that the pathway of reasonings determines the adverse credibility findings. So a tribunal can’t just make a finding at the end, “I just don’t believe the applicant.” The tribunal has to say why, and that has to be rational and reasonable. And, unfortunately, the particular method of the tribunal describing the situations in this case on the basis of concerns or vagueness, in my submission, were a fatal error. As a useful analogy, could I take your Honour to page 87 of the authorities again, where Needham J in a very recent decision analysed, really, the question of credibility in how does one come to view it all. So does your Honour have that page?
(emphasis added) (Hearing Date 3 April 2025 Tp 17.45-Tp 18.26)
Pathway of reasoning – failure to make findings of fact, references to “concerns” and evidence being “vague”
The applicants referred to the High Court decision of Yusuf at [67], where McHugh, Gummow and Hayne JJ stated that “430(1)(c) obliges the Tribunal to set out the findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision”.
Section 430, as at the date of the Tribunal’s decision in April 2019, was in the following terms (compilation date 17 April 2019):
430 Tribunal’s decision and written statement
Written statement of decision
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based
The applicants also referred the Court to the decision of Wingfoot Australia Partners v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [54] and [55] (Wingfoot), where the applicants submitted that the Full Court said the statement of reasons must explain “the actual path of reasoning” by the decision-maker. I accept the Minister’s submission that Wingfoot is a case about the availability of certiorari for non-jurisdictional error of law on the face of the record where there had been a failure to discharge a duty to give reasons. However, the applicants were referring to a failure to set out reasons as envisaged by s 430(1) of the Act, as that may disclose the Tribunal had failed to perform the statutory task imposed by s 414 of the Act.
The applicants contended at [3] and [5] of their post-hearing submissions dated 10 June 2025 as follows (as per original):
[3] The applicant’s case is that a proper review is not done if the AAT’s decision does not ‘explain the actual pathway of reasoning’ the AAT adopted in the record of its decision. That is, if the AAT cannot demonstrate how it came to its conclusions, then there is no proper review under s414
……..
[5] In the seminal Full Federal Court judgment on migration law, Re Minister of Immigration, Local Government and Ethnic Affairs v Dhillon [1990] FCA 144 Their Honours Northrop, Wilcox and French JJ stated that a decision maker did not conduct a proper process of decision making if the decision is based on ‘suspicions or conflicts of evidence’. This passage below has stood the test of time and so eloquently and in a commonsense manner, describes what must be done in order to fulfill the function of making a proper decision:
10. It cannot be too strongly emphasised that a primary responsibility of a statutory decision maker is to reach firm conclusions about those facts which are relevant to his or her decision. If the decision maker is subsequently called upon to state his or her findings, he or she should do so in clear and unambiguous terms; not being reticent in expressing findings adverse to particular people, if in fact they were the actual findings reached at the time of the decision. Contrary to the submission put by counsel for the Minister, it is not correct to discount a factor favourable to an applicant by reference to conflicting evidence or doubts. A person affected by a statutory decision is entitled to have the case determined by reference to found facts, not suspicions or conflicts of evidence. Only if this is done is it possible for the affected person to understand precisely the reason why the decision went as it did. Only if this is done it is possible for a judicial reviewer to determine whether there was evidence before the decision maker to support the finding. [emphasis added]
The applicants submitted that the Tribunal’s reasons did not identify a proper pathway of reasoning for the following reasons:
(a)The Tribunal’s reasons were “replete with points of concern”, which in the end were of little value to any pathway of reasoning, as no area of concern is a finding of a material question of fact”.
(b)The Tribunal’s use of the term “vague” in its reasons, did not disclose a pathway of reasoning.
(c)The Tribunal’s decision disclosed only “broad conclusions and assertions”.
(Hearing Date 21 May 2025 Tp 7.7 and Tp 8.44).
The applicants’ written submissions drew my attention to specific transcript references of the hearing before the Tribunal.
Misunderstood the term “relevant consideration”
The applicants also argued that the Tribunal at [30] of its reasons, stated in relation to the first applicant spending a large amount of time outside Bangladesh, the following:
The Tribunal considers that the applicant has indeed shown a strong desire to live abroad, over a period of almost 35 years (at the time of this decision). While this does not preclude that he is also a person in respect of whom Australia has protection obligations, it is in the Tribunal's view a relevant consideration when assessing his circumstances as a whole.
(emphasis added)
The applicants contended that the use of the phrase “relevant consideration” disclosed an error on the part of the Tribunal, because the amount of time the applicants spent outside of Bangladesh, was not a “relevant consideration” that the Tribunal member as a decision-maker was bound to take into account, based on the subject matter, scope and purpose of the Act, which disclosed a misunderstanding on the part of the Tribunal in exercising its statutory function (Hearing Date 21 May 2025 Tp 7.26-8.6). The applicants referred the Court to the decision of Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; [1986] HCA 40 (Peko-Wallsend) at [39] to [42].
Interpreter issue
The applicants also pointed out that the hearing was conducted over the telephone with the assistance of an interpreter and in those cases it created an inherent difficulty for a decision-maker to assess a person based upon matters of demeanour and impression, and how the medium of an interpreter could affect assessment of demeanour of the person giving evidence (Second Hearing 21 May 2025, Tp 5.5-15). The applicants referred me to the decision of DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177; [2021] HCA 12 (DVO16) at [54], which warned of the dangers of making credibility assessment when the evidence was given through an interpreter, as well as CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97 at [72].
The applicants at [12] and [13] of their post-hearing submissions dated 10 June 2025, contended that the Tribunal’s reasons did not acknowledge it had appreciated the difficulties of the evidence received through an interpreter. The applicants further submitted that the Tribunal needed to grapple with the difficulties of evidence received through an interpreter, in assessing evidence and determining issues of credit.
The applicants also contended at [14] of the applicants’ post-hearing submissions dated 10 June 2025 the following:
[14]Further the AAT appears to have taken no cognisance of the fundamental principle in migration law as set out by McHugh J in the seminal decision of Chan v Minister for Ethnic Affairs (1989) 169 CLR 379 that an applicant “may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be…or otherwise persecuted”, (at 429):
The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a farfetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as "well-founded" for the purpose of the Convention and Protocol.
Consideration
The Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ), considered in that case whether the Tribunal had failed to perform the statutory task imposed on the Tribunal, which usefully for this case stated the following principles:
[32] The Tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it. Relevantly, and almost uniformly for the Tribunal (putting complementary protection to one side), the criterion is the one set out in s 36(2)(a) of the Migration Act, which picks up Art 1 of the Refugees Convention.
[33] The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.
[34] Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
[35] The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there. It is appropriate to recall how the task was described by Gummow and Hayne JJ in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (S395) at [73]-[76]:
[73]The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership of a particular social group or political opinion” that are engaged.
[74]Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
[75]Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant's country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.
[76]Because reasoning of the kinds just described is often employed, it is perhaps inevitable that those, like the Tribunal, who must deal with large numbers of decisions about who is a refugee, will attempt to classify cases. There are dangers in creating and applying a scheme for classifying claims to protection. Those dangers are greatest if the classes are few and rigidly defined. But whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class.
…
[49] The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].
…
[57] We are concerned with what its reasons, as they are, reveal about the Tribunal’s performance of its statutory task.
Mr Boccabella took me to parts of paragraphs of the Tribunal’s decision and asserted that the part of the paragraphs I was taken to did not contain the findings and reasons necessary, and therefore there was a failure to set out a pathway of reasoning.
I accept the Minister’s submissions, that this approach to reading a decision-makers’ reasons is self-evidently flawed, and the reasons must be read to determine whether the Tribunal had in fact discharged its statutory task under s 414 of the Act. As the High Court said in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196; [2024] HCA 2 at [50] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ):
[50]Indeed, the High Court has recently stressed that “[a] decision-maker’s written reasons for decision are often structured in sequence” and the fact that reasons are structured sequentially “is not generally a sufficient reason to infer that in dealing with one matter the decision-maker has forgotten the substance of the preceding parts of the reasons or is unaware of the substance of the subsequent parts of the reasons”:
Analysis of the Tribunal’s reasons
Therefore, I now turn to the whole of the Tribunal’s reasons, which are analysed below at [38] to [52] and [61] to [64] of this judgment. From that analysis I find the Tribunal’s decision was based on a logical framework, where it undertook the task of identifying the issues, the relevant law that needed to be applied, the claims and evidence, followed by findings of fact which were open on the evidence. Thus, I find the Tribunal properly performed the statutory task imposed on the Tribunal to review under s 414 of the Act.
Summary of findings of fact
The Tribunal at [5] of its reasons, relevantly summarised its findings at the outset, as follows:
(a)The Tribunal did not accept the first applicant was politically active or held a leadership position in the BNP (First Finding).
(b)The Tribunal did not accept that the government authorities, the first applicant’s business partner or thugs associated with the AL, targeted the first applicant by laying false criminal charges or assaulting the first applicant or seizing the business of the first applicant or threatening other members of the first applicants’ family (Second Finding).
(c)The Tribunal found that the applicants left Bangladesh for reasons unrelated to their protection claims (Third Finding).
(d)The Tribunal found the first applicant had participated in a Bangladesh political/social group in Australia, but did not accept that this made him a person of adverse interest in the Bangladesh authorities (Fourth Finding).
The Tribunal indicated at [5] of its reasons that its findings of fact would be explained later in the reasons. This is an orthodox way of writing reasons.
Issues
The issue in this case was clearly identified at [6] of the Tribunal reasons, being whether one or more of the applicants met the refugee criterion and if not, whether any of them was entitled to complementary protection. The Tribunal annexed a copy of the relevant law to its decision, identifying correctly the law that it needed to apply.
Claims and evidence
The claims and evidence before the Tribunal, that it was required to consider, were properly identified at [9] to [25] of its reasons, and succinctly summarised at [7] and [8] of its reasons as follows:
[7]The first-named applicant ('the applicant' or 'the applicant husband') claims to fear harm arising from his support for the opposition Bangladesh Nationalist Party (BNP), and his active membership. He claims that his business partner is a supporter of the ruling Awami League (AL) who illegally seized his share of a business; and AL cadres have threatened him and his family. He also claims that the police arrested, detained and injured him during various protests, and they have now brought politically motivated criminal charges against him. He fears that the Bangladesh authorities, acting on behalf of the AL, will arrest, imprison, mistreat and perhaps kill him on his return to Bangladesh. He also fears that AL cadres will abduct, mistreat and possibly kill him, with impunity. They will do so because of his past profile and his ongoing political activities, including with a BNP group in Australia.
[8]The second- and third-named applicants, the applicant's wife and young son, claim to have faced threats and harassment because of their association with the applicant. They claim to fear persecution on the basis of an imputed political opinion; and/or to be at risk of significant harm.
The parties agree that the Tribunal properly identified all claims made by the applicants.
The Tribunal noted at [26] of its reasons that:
[26]The Tribunal has taken into account the AAT's Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant's evidence as a whole.
Key credibility concerns
The Tribunal foreshadowed at [27] of its reasons the key credible concerns it had with the first applicant’s claims and evidence. It is useful to set out what the Tribunal said at that paragraph, as it gives context to the Tribunal’s findings:
[27]The Tribunal has comprehensive concerns about the applicants' credibility, and their need for protection. The claims and evidence were voluminous. The supporting documents to the Tribunal were indexed and referenced. However, the oral and written statements, and submissions were often disordered, vague, changeable, and accompanied by broad assertions. They sometimes mixed personal claims with general country information. The Tribunal formed the view that the applicants also exaggerated and misconstrued some true events, for instance by giving them a political flavour or presenting them within a narrative of persecution/significant harm. It was particularly difficult to establish an overview, timeline or sequence for even significant events and claims; and correspondingly difficult to match these with the applicants' travel or other personal activities. The applicant attributed this in part to his memory, and to the sheer volume of adverse experiences, large and small. The Tribunal is concerned, however, that he was often not drawing on past personal experiences.
The applicants attack [27] of the Tribunal’s reasons as providing “minimal specifics”. I accept the Minister’s submissions that [27] of the Tribunal’s reasons is a summary, and a high-level observation of the Tribunal’s observations, with the Tribunal providing details as to its consideration and findings from [29] to [122] of its reasons. I address the key findings the Tribunal made in relation to the Five Findings referred to at [38] of this judgment.
First Finding - The Tribunal did not accept the first applicant was politically active or held a leadership position in the BNP
At [60] of the Tribunal’s reasons, the Tribunal made findings that it accepted the first applicant supported the BNP and that he may have attended some large-scale public gatherings and may have made some donations. However, the Tribunal did not accept that the first applicant had any profile beyond that of a general supporter of the BNP and did not accept that he was a “grassroots leader”, an activist, an active member, an office bearer in Motijheel Thana BNP or that he had any other kind of political profile. I reject the applicants’ submissions that the Tribunal’s reasons did not disclose why the Tribunal made certain findings. This is because I find when reading the Tribunal’s reasons as a whole, the Tribunal did in fact explain why it did not accept the first applicant’s claims as to his political profile, which were as follows:
(a)The Tribunal considered the first applicant’s travel history at [29] of its reasons. At [30] of its reasons, the Tribunal made a finding that it considered the first applicant had shown a strong desire to live abroad for a period of almost 35 years (at the time of the Tribunal’s decision). The Tribunal noted that it considered this factor was relevant when assessing the first applicant’s circumstances as a whole. The applicants have challenged [30] of the Tribunal’s reasons contending that the Tribunal misunderstood its task because it said it took into the applicants travel history as a relevant consideration, which was not in fact a mandatory relevant consideration. I reject the applicants’ submissions, as the Tribunal was clearly not of the view that the applicants travel history was a mandatory consideration, in the Peko-Wallsend sense. Rather, the Tribunal at [30] of its reasons was expressing its view as to what it considered to be relevant when assessing the first applicant’s circumstances and claims. The Tribunal considered it relevant that the first applicant had shown a strong desire to live abroad for over a period of almost 35 years, as at the time of the Tribunal decision, albeit acknowledging that this did not necessarily preclude a person in respect of whom Australia owed protection obligations. I find it was open to the Tribunal to consider these facts as relevant in its assessment of the first applicant’s claims.
(b)At [47] of its reasons, the Tribunal found that the first applicant had recited a catalogue of political activities, rather than drawing on lived experience. Further, in the context of dealing with the first applicant’s claims that he had a degree of seniority within the BNP party, and was the (Assistant) Vice President of the Motijheel Thana branch, the Tribunal found that “given the applicant’s vague account”, the Tribunal did “not accept that he had any organisational or official role in the BNP” which gave him a political profile (at [47] first and last dot point). The applicant challenged the reference to “vague” in this paragraph, however I find in the context of the paragraph, the Tribunal was saying that the accounts were unparticularised assertions of political donations and party gatherings attended and therefore the Tribunal did not accept the first applicant had the political profile he claimed. I find it was open to the Tribunal to make that finding as it is reasonable that if someone claimed a senior political profile that they would be able to provide details of the activities they were involved in.
(c)At [48] of its reasons, the Tribunal found there was little “context or insight” as to what led the BNP to elect the first applicant as the Vice President of the Motijheel Thana BNP branch.
(d)At [49] of its reasons, the first applicant could not answer specific questions, such as the name of his electoral constituency. The first applicant could not recall the name of the successful, uncontested AL candidate in the parliamentary election held on 5 January 2014. Further, although the first applicant recognised the BNP’s Central Office in Nayapaltan (Dhaka) based on the photographs the Tribunal showed him, he could not give details as to the layout of the Central Office (such as which floor of the building it was located on).
(e)At [51] of its reasons, the Tribunal noted that its questioning of the first applicant was to assess whether he was able to draw on personal experience in describing local political events and dynamics. The Tribunal found even allowing for the possibility that the first applicant had difficulty remembering certain details or that he was nervous at the hearing, the Tribunal considered the first applicant’s knowledge of local BNP politics to be that of a local business person who generally favours the party but not that of an office holder, a leader or even an active member. Pausing there, the reference by the Tribunal that the first applicant was nervous at the hearing showed an awareness by the Tribunal of the considerations referred to by Edelman J in DVO16.
(f)At [52] of its reasons, the Tribunal noted that despite recalling very specific dates of attending BNP protests on 8 July 2015, 13 July 2015 and 10 August 2015, the first applicant did not know what days of the week these incidents occurred or why (given his lack of recall about other dates and time periods) he remembered those dates.
(g)At [53] of its reasons, the Tribunal noted the first applicant was not able to provide any corroborative material from the period he claimed to have held a senior position in a BNP branch in central Dhaka.
(h)At [58] of its reasons, the Tribunal noted that the first applicant had no contemporaneous supporting evidence from Bangladesh and rejected the first applicant’s explanation as to the lack of supportive contemporaneous evidence. The Tribunal found that this was a “strong indication that there is no such material, and that the applicant did not engage in BNP political activities or hold a party position at any time”.
Second Finding – Targeted in Bangladesh
The Tribunal found that it did not accept the first applicant had any political opinion or motivation which he had to suppress due to any fear of general political violence or threats in Bangladesh ([60] of the Tribunal’s reasons). Reading the Tribunal’s reasons as a whole, I find the reason why the Tribunal made this finding was as follows:
(a)The first applicant, apart from a few instances of protests that he claimed he attended, struggled to give even a broad account of the sequence or timeline of claimed past harm in Bangladesh in 2013, 2014 and 2015. The Tribunal formed the view that the first applicant was avoiding committing to any firm dates or details, preferring instead to talk in broad terms ([61] of its reasons).
(b)At [62] of the Tribunal’s reasons, it was not satisfied that as the first applicant claimed that AL people started to persecute him “when [they] came to power in 2006”. As explained at [62] of its reasons, the Tribunal was not satisfied of that matter for a number of reasons, being that the AL had in fact won the election in late December 2008 and not 2006, and further the Tribunal found the applicant’s evidence of “AL caused many problems, put him (and others) under pressure and interfered with their daily life” to be “vague, impoverished and unconvincing”. This was a paragraph that was challenged by the applicants. However, I find it was open to the Tribunal to determine that the said evidence was “vague, impoverished and unconvincing”, given that the first applicant had difficulties in providing particulars of the events that was said to have occurred, apart from saying “AL caused many problems…put him and others into pressure and interfered with their daily life…for instance, there were problems taking children to school”. It was a matter for the Tribunal to assess the first applicant’s evidence after hearing his evidence and I find it was open to the Tribunal to make the finding it did.
(c)The Tribunal at [76] of its reasons found that the first applicant had arranged for the hospital letter which referred to a “political injury” to be manufactured for the purposes of the protection application. The Tribunal made that finding for the reasons it set out in [73], being that first, the reference to “political injury” strongly suggested that the purpose of the letter was to assist in the protection visa application. Second, the letter was signed and dated on the day the first applicant was said to have been hospitalised, but it was able to say that the applicant would be in good health 4 days later.
(d)Given the evidence as to the applicants’ trips abroad during 2014 and 2015, their continued stays in their two homes in Dhaka and Tangail, their delayed departure from Bangladesh and their posting on social media of their whereabouts, as well as the first applicant’s son’s continued attendance at school until December 2015, the Tribunal’s conclusion that the first applicant’s claims were “completely untruthful” is reinforced ([78] of its reasons).
(e)At [85] of the reasons, the Tribunal found that the first applicant’s claims that the AL cadres confronted and threatened him and his family directly on various occasions to be “vague, uncertain and exaggerated”. The Tribunal explained why it came to that finding at [85] of its decision, being the first applicant’s inability to remember and uncertainty as to the timing and details of direct threats to family members and the applicants’ conduct during that period. This included their regional travel, continued residence in Dhaka and Tangail, delayed departure from Bangladesh and the first applicant’s posting on social media of his son’s whereabouts. The Tribunal concluded that it found that none of the incidents claimed had occurred.
(f)As to the first applicant’s claims that his business partner was a member of the AL and used his political connections to undermine the first applicant’s investment and eventually seize the business from him, the Tribunal at [74] of its reasons found that it was unable to determine the exact relationship between the first applicant and his former business partner.
Third finding – Departure from Bangladesh
The Tribunal dealt with the applicants’ departure from Bangladesh from [95] to [103] of its reasons and at [101] found that the applicants were not hiding in Bangladesh at any time prior to their departure for Australia. Reading the Tribunal’s reasons as a whole, I find the Tribunal’s reasons for that finding was as follows:
(a)At [95] of its reasons, the Tribunal did not accept the first applicant’s explanation for the applicants’ delayed departure from Bangladesh.
(b)At [97] of its reasons, the applicants’ bank accounts showed regular banking, including ATM visits right up to 20 December 2015, just prior to the applicants’ departure for Australia, which reinforced the Tribunal’s view that the applicants were not hiding in Bangladesh from the authorities, AL cadres or anyone else.
(c)At [99] and [100] of its reasons, the first applicant posted on Facebook photographs showing the applicants on holidays in Malaysia and Singapore in 2014 and the first applicant’s business trip in mid-2015, as well as his son’s school party in Dhaka in December 2015. The postings reinforced the Tribunal’s doubts that the first applicant was fearful of the Bangladesh authorities detecting and detaining him and his family, because it made no sense that the first applicant published photographs of himself and his family if they were fearful of the Bangladesh authorities.
Fourth finding – Political activities in Australia
The Tribunal dealt with the first applicant’s political activities in Australia in association with BNP from [104] to [109] of its reasons. At [109] of its reasons, the Tribunal found that the first applicant’s involvement with BNP Australia had been “overwhelmingly to bolster his protection claims”. At [108] of its reasons, the Tribunal accepted that the first applicant made contact with BNP Australia in April 2016, some five months after he arrived in Australia. The Tribunal was not satisfied as to the first applicant’s claimed functions within BNP Australia given his “vague evidence”. I find it was open to the Tribunal to form the conclusion that the evidence was lacking in details for it not to be satisfied that the first applicant had a particular political profile within BNP Australia.
Recent developments in Bangladesh
The Tribunal dealt with recent developments in Bangladesh, which included harassment of the first applicant’s daughter, kidnapping and serious assault of his nephew from [110] to [117] of its reasons. At [113] of its reasons, the Tribunal said it placed little weight on the first applicant’s daughter’s statement as it was not independent corroboration of the first applicant’s claim given her obvious interest in assisting her family’s protection visa.
At [117] of its reasons, the Tribunal found that the assault of the first applicant’s nephew in mid-2017 was unrelated to the first applicant’s protection claims for the following reasons:
(a)The Tribunal’s findings that it did not accept the first applicant had an adverse political profile in Bangladesh and left the country fearing persecution or significant harm or that he was of interest to the Bangladesh authorities or AL Cadres.
(b)There appeared no apparent reason why the authorities and/or AL Cadres would attack the first applicant’s nephew after more than a year and half of the first applicant’s departure.
(c)The claim that the authorities were harassing the first applicant’s nephew because he was acting on behalf of the first applicant did not make sense because there was no evidence that the person who was now acting as caretaker for the first applicant’s properties was similarly targeted.
(d)The nephew’s evidence was given little weight by the Tribunal as it was not independent corroborative evidence given he was a family member of the first applicant.
Specific claims raised by the first applicant’s wife on her own behalf and that of the child
Specific claims raised by the first applicant’s wife on her own behalf and that of his child, that they were targeted by AL cadres, in AL cadres’ pursuit of the first applicant, was dealt with by the Tribunal at [120] to [122] of its reasons. The Tribunal rejected these claims and, in my view, the reasons it gave were logical and properly addressed those claims.
Applicants’ complaint as to Tribunal’s reasons describing first applicant’s evidence as “vague”
Mr Boccabella referred to parts of the transcript to show that the first applicant’s evidence was not “vague”.
One example referred to by Mr Boccabella at [47] of the Tribunal’s reasons was where the Tribunal referred to the first applicant’s account as “vague”. Counsel for the applicants referred to the transcript at the first hearing before the Tribunal at Tp12.25-12.50 and Tp17.35-17.47, to argue that on reviewing those parts of the transcript the evidence cannot be said to be vague. I note that the evidence in those transcript references was the first applicant’s description of how he became Vice President of his branch at BNP by frequently engaging with and donating money to the party. I find the Tribunal summarised the first applicant’s evidence fairly at the second dot point at [47] of its reasons. I accept the Minister’s submission that jurisdictional error is not disclosed because an applicant was of the view that his account was not vague, as long as it was open on an assessment of the material for the Tribunal to make such a finding. In this case I find it was open to the Tribunal to find, because of a lack of particularisation and clarity, that the first applicant’s evidence was indeed vague.
Another specific paragraph the applicants challenged was at [33] of the Tribunal’s reasons, which stated:
[33]The applicant stated that the family left Bangladesh during the holiday period (following the 16 December Victory Day national holiday), as he believed that airport security was laxer then. He did not explain the time delay between the 16 December national holiday and the family's eventual departure; or his source of information about security practices at the airport. The applicant wife alluded to another problem as well, namely that it was difficult to secure tickets to depart. The Tribunal finds this unpersuasive, as the applicants actually produced evidence of confirmed tickets with their visitor visa application. (emphasis added)
The applicants submitted that the Tribunal should have identified what part of the transcript the Tribunal found unpersuasive. At [19] of the applicants’ post-hearing submissions dated 10 June 2025, the applicants contended that they gave detailed evidence to the Tribunal as to why the first applicant changed the departure date from Bangladesh to Australia to coincide with the public holiday as the first applicant was advised by his BNP associates that security would be less strict on the days when a lot of airport staff were on holidays. The applicants provided me specific transcript references of the hearing before the Tribunal. This was an attempt by the applicants to persuade me that the Tribunal was wrong to find at [33] of its reasons that the first applicant’s evidence as to those matters was “unpersuasive”.
Further, the Tribunal at [33] of its reasons said the first applicant’s wife’s evidence was that a further reason for the delay in leaving Bangladesh was because the applicants had difficulty in securing air tickets to depart. The Tribunal found that explanation by the wife was unpersuasive because the applicants had in fact secured tickets to depart Bangladesh back when they obtained the Australian visitor visas on 3 September 2015.
As said, it is not the function of this Court to engage in a merits review of the evidence. This Court needs to consider the reasons as a whole provided by the Tribunal, which I have done at [38] to [52] of this judgment, and I have concluded that the Tribunal’s assessment of the evidence as “vague” was open to the Tribunal, for the reasons it provided in its decision and as identified in this judgment.
My conclusion as to the Tribunal’s fact-finding process
I find that the Tribunal logically dealt with the claims and evidence and its reasons disclose that it reached findings in relation to those claims, for which there was an evident and intelligible justification. Put simply, the Tribunal understood its task in terms of whether to accept or reject the claims and evidence and provided reasons for doing so.
In relation to the complaint that the Tribunal did not evaluate the evidence, the reasons set out at [38] to [52] of this judgment, demonstrate the Tribunal engaged in an evaluative process. Further, for the reasons set out at [46(e)] of this judgment, the Tribunal was aware and made allowances for the first applicant being nervous at the hearing, demonstrating an awareness by the Tribunal of the considerations referred to by Edelman J in DVO16.
Tribunal’s appreciation to apply the relevant law to the accepted facts
Turning now to the remainder of the Tribunal’s decision, which illustrated the Tribunal’s appreciation of the need to apply relevant law to the accepted facts to determine the refugee criterion assessment and the complementary protection criterion. From [127] to [142] of its reasons, the Tribunal provided reasons as to why the first applicant did not meet the refugee criterion. In so doing, it relied upon its accepted findings and considered country information where relevant to that assessment.
At [143] to [145] of its reasons, the Tribunal also undertook the assessment of each of the first applicant’s wife and child against the refugee criterion.
Finally, at [146] to [150] of its reasons, the Tribunal undertook an assessment of all applicants against the complementary protection criterion. Having found that none of the applicants met the criteria in s 36(2)(a) or (aa) or s 36(2)(b) or (c), the Tribunal affirmed the delegate’s decision.
The applicants in their post hearing submissions suggested that the Tribunal did not correctly consider and apply the meaning of “well-founded fear of persecution”. This was not a contention that had been raised previously. On reviewing the Tribunal’s reasons I accept the Miniter’s submissions that the Tribunal did direct itself to the relevant “real chance” test as evidenced by the Tribunal’s reasons at [6], [127], [138], [139], [141], [142], [144] and Attachment A, which contained relevant extracts from the Act, including s 5J.
Interpreter Issue
Further, in relation to the applicants’ argument that the Tribunal did not consider the difficulties of evidence received through an interpreter in making credibility findings, apart from making that bold submission, the applicants did not take me to any part of the transcript before the Tribunal to argue that there was any translation issues or difficulties which the Tribunal ought to have acknowledged in its reasons. In any event, as outlined at [44] to [49] of this judgment, the Tribunal’s concerns as to the credibility of the first applicant did not concern questions of the first applicant’s demeanour, but rather centred around the following matters: the Tribunal forming the view that if someone claimed a senior political profile, that they would be able to provide details of the activities they were involved in, rather than providing unparticularised assertions that appeared to be a learnt narrative rather than from lived experiences; the first applicant struggled to give even a broad account of the sequence or timeline of claimed past harm in Bangladesh in 2013, 2014 and 2015; the first applicant had manufactured evidence, being the hospital letter; and the Tribunal’s finding that it was not satisfied the applicants were not in hiding in Bangladesh, as they were regularly using the ATM and were posting material on Facebook as to their whereabouts.
Alleged failure to call Mr Shahin
Before moving to ground 3, for completeness I will now turn to address a further matter raised by the applicants in their post-hearing submission dated 10 June 2025, where the applicants at [31] and [32] alleged a failure on the part of the Tribunal to call Mr Shahin, who was a witness that the applicants wished to call. I will deal with this matter, although I note that leave has not been sought to amend the grounds of review to raise this matter as a separate ground of judicial review.
The Tribunal at [20] of its reasons noted that the applicants had nominated Mr Shahin, Assistant Office Secretary of the BNP, to give evidence but noted the applicants’ legal representative’s submissions that if the Tribunal contacted Mr Shahin, it may place Mr Shahin at risk. There was an option of taking Mr Shahin’s evidence via encrypted telephone, but the applicants’ representative noted to the Tribunal that even such links were unreliable in Bangladesh. The Tribunal noted at [20] of its reasons that the Tribunal did not propose to contact overseas witnesses who the applicants’ representative had claimed to be at risk from such a call. The Tribunal said it would give appropriate weight to the willingness of Mr Shahin to give evidence.
The Tribunal at [57] of its reasons accepted that Mr Shahin had written a general letter of support to assist a compatriot and BNP supporter, but placed minimal weight on the letter as evidence of the first applicant being an office bearer or having any local profile. This was because Mr Shahin wrote that the first applicant was “personally well-known to me” and that he was a “political worker of Motijheel Thana BNP” but made no mention of the first applicant experiencing any problems nor referred to the first applicant having held a position as Vice President or (Assistant) Vice President of that branch.
Given the applicants’ legal representative’s submissions that if Mr Shahin was called to give evidence, then he may risk harm, I find it was reasonable for the Tribunal to not insist on calling Mr Shahin.
GROUND 3
In relation to ground 3, the applicants contended that the Tribunal failed to properly accord the applicants procedural fairness before making the following finding at [94]:
[94]Given its view that the applicant had tailored his evidence on the go and that his claims lack credibility, the Tribunal is unable to determine his exact relationship with Elaborate Knitwear now or in the recent past, including whether he ceased being a business partner in 2014 or 2015 (for instance, through a sale, a business dispute or through mutual agreement)” (emphasis added).
The applicants relied on the decision of Firme v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 60 (Firme). In that case, the Court found that the Tribunal made a finding that some aspects of the applicant’s mother’s evidence was tailored and it did not consider her to be a reliable witness. The Court found that the applicant was not on notice that the Tribunal had concerns as to the reliability of the applicant’s mother’s evidence. The Court accepted at [62] that there was a realistic possibility that there could have been a different outcome.
The Full Court in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516; [2023] FCAFC 116 (Manebona) (Logan, Rangiah and Goodman JJ) said at [147]:
[147]Procedural fairness requires that each party be given a reasonable opportunity to present their case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ); Sullivan v Department of Transport (1978) 20. ALR 323 at 343 (Deane J). What will constitute a reasonable opportunity depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Commonwealth Conciliation and Arbitration Commission;Ex parte The Angliss Group (1969) 122 CLR 546 at 552–553; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [26].
As the Full Court noted in Manebona, what will constitute a reasonable opportunity depends on the whole of the circumstances of the case and it does not necessarily assist to look at another case, such as Firme, which involved a different factual scenario.
In this case, I reject the applicants’ argument that they were left without warning that the Tribunal thought the first applicant had “tailored” his evidence. This is because the delegate in fact expressly stated in relation to its assessment of the first applicant’s claims that:
I note that throughout the interview that Applicant One modified his testimony when provided with information that could be considered adverse to his case. When asked about this the applicant outlined how traumatised he was due to his experiences in Bangladesh and he was struggling to remember events which had occurred. It was put to Applicant One that his inability to recall information suggests his claims for protection were fabricated. He indicated he had lost a job in Australia due to his memory issues and that his general practitioner had recommended further testing. The applicants' representative also stated at interview that their inability to remember events was indicative of how highly traumatised they were due to what bad occurred in Bangladesh and that they are unaccustomed to the Australian legal system and answering questions. I do not accept that any of these reasons account for the discrepancies and inconsistencies in the applicants' cases. (CB 388 to 389)
(emphasis added)
The word “tailored” is synonymous with the word “modified”. The delegate’s reasons specifically, as noted in the preceding paragraph, raised as an issue that the first applicant had “modified” his evidence when provided with information that could be considered adverse to his case. As the High Court said in SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [36] “the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.” Thus, I find that the applicants were on notice that there was an issue that the first applicant had tailored/modified his evidence.
I also note that the Tribunal gave the applicants, who were represented by solicitors, ample opportunity to make submissions to the Tribunal. The Tribunal in its letter dated 2 August 2018 invited the applicants to a hearing and specifically noted that they should provide any written submissions by 28 August 2018. By letter dated 27 August 2018, the applicants’ lawyers did provide written submissions and various enclosures (CB 450 to 858). Relevantly, the applicants’ submissions under the heading “modified testimony” expressly addressed the delegate’s concerns that the first applicant modified his testimony when provided with information that could be considered adverse to his claim (CB 468). Thus, there is no doubt the applicants had notice that there was an issue that the decision maker had formed the view that the first applicant modified his evidence or “tailored his evidence on the go”, and in fact sought to respond to that allegation.
Further, the delegate in its decision dated 20 June 2016 made adverse credit findings in relation to the claims made by the first applicant. The delegate formed the opinion that the first applicant was not a credible witness regarding the claims to have feared harm in Bangladesh. The delegate did not accept that the first applicant was ever more than a supporter of BNP in Bangladesh and subsequently did not accept any of the incidents that the first applicant claimed to have occurred. The delegate noted that the first applicant’s multiple attempts to migrate from Bangladesh since the 1990s supported the conclusion that the application for a protection visa was lodged to facilitate a stay in Australia and not due to fear of serious harm in Bangladesh (CB 392).
In fact, the submissions provided by the applicants’ lawyers specifically addressed the following issues:
(a)that the delegate had denied the applicant procedural fairness, in that it found inter alia, the applicants were not credible witnesses (CB 466);
(b)the delegate had noted that the first applicant showed a willingness to fabricate evidence in order to advance a claim for protection in relation to its assessment of a medical certificate provided by the applicant (CB 472); and
(c)the delegate’s finding that “neither applicant is a credible witness regarding their claims to have feared harm in Bangladesh” (CB 475).
Further, by letter dated 10 September 2018, after the first Tribunal hearing on 4 September 2018, the applicants were sent an invitation to comment on information identifying numerous matters in relation to the first applicant’s claims, where the Tribunal noted that the information may be relevant to the Tribunal rejecting the first applicant’s claims on the basis of lack of credibility (CB 878 to 883).
The Tribunal resumed the hearing on 11 September 2018, which was attended by the applicants’ representative, where the applicants had the further opportunity to make submissions and give evidence, including from witnesses.
On 17 October 2018, the applicants’ solicitors responded to the invitation to comment and respond to the information from the Tribunal dated 10 September 2018.
I find that the applicants were clearly on notice from the delegate’s reasons referred to at [74] of this judgment that there was an issue as to whether the first applicant “tailored” his evidence. Further, the reliability of the first applicant’s evidence was clearly in issue as the delegate expressed concerns as to the credibility of the first applicant’s evidence as referred to at [77] of this judgment. Moreover, the applicants’ legal representatives provided written submissions addressing the Tribunal’s concerns as to the first applicant’s credibility and that the first applicant appeared to be “modifying” his evidence as referred to at [76] and [78] of this judgment.
Thus, I find that ground 3 does not disclose jurisdictional error.
CONCLUSION
As no jurisdictional error has been disclosed, the application must be dismissed.
COSTS
I will hear the parties as to costs.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 2 July 2025
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