FBU20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 523
•17 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FBU20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 523
File number(s): ADG 375 of 2020 Judgment of: JUDGE GERRARD Date of judgment: 17 April 2025 Catchwords: MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misapplied ss 36(2)(a) and (aa) – whether the Tribunal made unreasonable findings – irrationality – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 476 Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
DCC17 v Minister for Home Affairs [2019] FCCA 621
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of last submission/s: 13 March 2025 Date of hearing: 13 March 2025 Place: Adelaide Applicants: Self-represented Counsel for the First Respondent: Tara Rossetto Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 375 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FBU20
First Applicant
FBT20
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
17 APRIL 2025
THE COURT ORDERS THAT:
1.The application be 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 GERRARD:
INTRODUCTION
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant them Protection (Class XA) (Subclass 866) visas (the visas). As will be explained, for the applicants to succeed in this Court, they must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed.
BACKGROUND
The first applicant (the applicant) is a citizen of Bangladesh. On 18 July 2012, he first arrived in Australia on a student visa (CB 128). The second applicant is the applicant’s wife who is also a citizen of Bangladesh. On 4 April 2014, the second applicant first arrived in Australia as the applicant’s dependent spouse (CB 128). The applicants were subsequently granted further student visas and, on 8 February 2016, they were granted a Temporary Skilled Provisional visa which was valid until 8 February 2018 (CB 128).
On 7 February 2018, the applicants made a valid application for a protection visa (CB 1-35). The applicants provided written submissions and various other documents in support of their application (CB 36-62).
On 12 March 2020, the applicants were invited to attend an interview scheduled for 1 April 2020 (CB 80-82). The applicant attended that interview (CB 83, 91). Following that interview, on 1 April 2020, the applicant provided a letter from his employer in support of his application (CB 83-84).
On 9 April 2020, a delegate of the Minister refused to grant the applicants the visas (CB 89-95). The delegate found that the applicant had fabricated claims relating to the circumstances of his marriage for the purpose of his visa application, and the delegate was satisfied that he applied for a protection visa because he had exhausted all other suitable visa options (CB 93-94).
On 27 April 2020, the applicants applied to the Tribunal for review of the delegate’s decision (CB 96-97).
On 16 September 2020, the applicants were invited to attend a hearing scheduled for 21 October 2020 (CB 102-104). On 20 September 2020, the applicant provided a completed ‘Response to hearing invitation’ form (CB 107-109). On 13 October 2020, the applicant provided various documents to the Tribunal in support of his review, including country information, photographs of his wedding and a further letter from his employer (CB 114-120).
On 21 October 2020, the applicants attended the hearing (CB 121).
On 6 November 2020, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (CB 126-139).
On 10 December 2020, the applicants lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal began by observing that a delegate of the Minister refused to grant the applicants the visas on 9 April 2020 (at [1]). The Tribunal set out the legislative provisions in that regard (at [2]-[6]).
The Tribunal confirmed that, in accordance with Ministerial Direction No. 84, it had regard to the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, as well as country information prepared by the Department of Foreign Affairs and Trade (at [7]).
By way of procedural history, the Tribunal set out that the applicants married in Bangladesh in June 2013 (at [8]). The Tribunal outlined that the applicant arrived in Australia on 18 July 2012 on a student visa and was joined by the second applicant on 4 April 2014. It then set out that the applicants were granted further student visas, and on 8 February 2016, were granted a Temporary Skilled Provisional visa which was valid until 8 February 2018 (at [9]).
The Tribunal outlined that, since arriving in Australia, the applicant has returned to Bangladesh on five occasions, and the second applicant has returned on two occasions (at [10]-[11]).
The Tribunal set out that the applicants applied for the protection visas on 7 February 2018, with the second applicant not making protection claims in her own right, but as a member of the applicant’s family unit (at [12]).
The Tribunal confirmed that the issue before it was whether the applicant is a person in respect of whom Australia has protection obligations because he entered a ‘love marriage’ with the second applicant and fears harm from her father (at [13]).
The Tribunal confirmed that the applicants took part in a hearing before it on 21 October 2020 (at [15]).
The Tribunal then summarised the applicant’s substantive claims as follows:
·In his final year of schooling, the applicant commenced living with his sister and brother-in-law. His brother-in-law is a businessman in Bangladesh who assisted him financially to travel and study in Australia (at [16]).
·The applicant met the second applicant, who is his brother-in-law’s cousin’s daughter, at his sister’s house in 2009. When they first started dating, the applicant did not tell his family (at [17]).
·In 2012, the applicant travelled to Australia to study a Master of Commerce and continued a long-distance relationship with the second applicant during this time. Approximately six months after arriving in Australia, the applicant returned to visit his family in Bangladesh, and his sister and brother-in-law found out he was in a relationship with the second applicant, although he does not know how they found out (at [18]).
·The applicant’s brother-in-law had some “bad business dealings” with the second applicant’s father, who did not approve of the relationship and advised the applicant to end it (at [19]). The applicant’s parents were neutral about the relationship but he believed they deferred to the views of his brother-in-law. He never formally asked his parents to consent to the marriage (at [20]).
·The applicant wanted to marry the second applicant but it was difficult as he had to keep it secret from his parents. He asked the second applicant’s father for consent, to which he initially did not approve, but then consented on the condition that he brings the second applicant to Australia and convinces his parents to support the marriage. He was also required to comply with Muslim tradition and provide the second applicant with a Mahr which was agreed to be the equivalent of approximately AUD84,000 (at [21]).
·The applicant returned to Bangladesh in June 2013 and secretly married the second applicant. He purchased the ring and his father-in-law paid for the wedding. Only the second applicant’s family attended, as he did not tell his parents about the wedding. One of his friends was a witness and he told him to keep it secret (at [22]).
·The applicant provided a copy of his marriage certificate, which stated the applicants were married on 15 June 2013 (at [23]).
·The applicant provided photos of the applicants on their wedding day in traditional clothing, and a photo of the second applicant with her parents taken on the day before the wedding “gave holoud”. It was a small religious celebration held in the father-in-law’s home (at [24]).
·When questioned about how his father-in-law found out that he had not obtained his parents’ consent to the marriage, the applicant said his brother-in-law telephoned him in November 2011 and told him he had found out about the marriage. He suspects his sister told his brother-in-law. His brother-in-law said he felt betrayed, that he would cut off financial assistance for his studies, that he was not welcome at home and that his father wants him to end the relationship (at [25]).
·When asked why he feared returning to Bangladesh, the applicant stated he was no longer welcomed by his family in Bangladesh. His father-in-law expected the applicant to convince his parents to accept the marriage, that he will make sure they separate if they return, and that he will demand that the Mahr be paid (at [27]-[28], [36]).
·The applicant conceded his father-in-law is not a politician as set out in his statement of claim, but confirmed that he works for the local government. Whilst he does not fear his father-in-law will physically harm him if he returns, he speculates his father-in-law will initiate legal proceedings for payment of the Mahr and that he does not have the money to pay it, so he will go to jail (at [29], [36]).
·The applicant conceded he did not fear physical harm from anyone in Bangladesh because of his marriage, but that he would suffer mental torture and anguish (at [30]).
·The applicant provided a reference letter from his employer in Australia, who claims to know about the secret circumstances of his marriage (at [31]).
In assessing the applicant’s claims, the Tribunal had regard to various country information report extracts prepared by the Immigration and Refugee Board of Canada which discuss arranged marriage practices in Bangladesh (at [33]). This country information suggested that choosing who to marry is subject to great family and parental constraints, but that Muslim marriages must be declared publicly and should never take place in secret (at [33]-[34]).
The Tribunal made the following findings in respect of the applicant’s evidence.
The Tribunal accepted that the applicants were married in Bangladesh in June 2013 (at [35]). However, it did not find the applicant’s evidence about the circumstances of the marriage to be credible. The Tribunal did not accept that the applicants took part in a secret Islamic marriage only attended by the second applicant’s family and that the applicant’s parents were not told about the relationship or the marriage (at [38]).
In particular, the Tribunal found it unusual that the applicant would arrange a secret marriage in Bangladesh where he did not try to seek his parent’s consent. The Tribunal did not find the applicant’s response, that he was influenced by his brother-in-law’s views and that his parents were old, as a credible reason for not attempting to seek their consent. The Tribunal did not find this to be consistent with country information suggesting that the parents’ consent is important even in the context of a ‘love marriage’ and where Muslim marriages usually have to be declared publicly (at [39]-[40]). It did not accept that the father-in-law would consent to a secret Islamic religious marriage with no parental knowledge or consent (at [40]).
The Tribunal acknowledged the applicant’s evidence that the applicants lived separately when they returned to Bangladesh in April 2015, and that he went to his brother-in-law’s home while the second applicant stayed with her family. However, the Tribunal found it unusual that the applicant would have photos of the wedding if he wanted to keep it secret, and that his brother-in-law only found out about the marriage in 2017, four years after they had been married (at [24]-[26]).
In respect of the Mahr, the Tribunal found it strange that the second applicant’s father would demand AUD84,000 where the applicant was still studying in Australia, had no full-time employment, no assets and did not have his parents’ consent to the marriage (at [41]). It also found it unusual that the father-in-law would give consent to the applicant’s marriage on the condition that he had to convince his parents to accept the marriage afterwards (at [42]). The Tribunal found the applicant’s evidence of the father-in-law’s angry reaction to the news of the marriage, and that his parents had not given their consent, to be unusual, inconsistent and lacking in credibility in circumstances where both applicants returned to Bangladesh in 2015 and kept the marriage a secret with no issue from the second applicant’s father at that time (at [43]).
Whilst noting the applicant is highly regarded by his Australian employer, the Tribunal found the reference letter to be inconsistent with the applicant’s evidence that his father-in-law knew about the relationship, gave his consent to the marriage and paid for the wedding. The Tribunal considered the letter but gave it little weight (at [31]).
In assessing the credibility of his protection claims, the Tribunal also had regard to the timing and delay of the applicants’ protection visa application. The Tribunal noted that the applicants married in June 2013, over seven years ago, and have been living together in Australia since April 2014 on temporary visas. It then noted that the applicants did not apply for protection until 7 February 2018, one day before their Temporary Skilled Provisional visas expired. When the Tribunal raised its concerns in this respect, the applicant said he was hopeful to get a business sponsorship to remain in Australia but, in obtaining migration advice, applied for a protection visa. The Tribunal then asked if the applicant had applied for protection because he feared harm in Bangladesh or because he wanted to remain in Australia, to which he replied he wanted to remain in Australia for both reasons and is still hopeful he will get business sponsorship (at [44]).
Ultimately, the Tribunal found that neither of the applicants have been threatened with physical harm by either of their families, and that the significant reason for the applicant’s fear of persecution in Bangladesh is due to a personal family dispute with his father-in-law over the circumstances of his marriage (at [37]).
The Tribunal had regard to the inconsistencies in the evidence, the “unusual nature” of the agreement with the father-in-law and the timing of the protection visa application, and ultimately found that he has manufactured his evidence about the family dispute so he can remain in Australia (at [45]). Accordingly, the Tribunal was not satisfied that, in considering the refugee criterion, there is a real chance that the applicant would face serious harm from his father-in-law on return to Bangladesh (at [46]).
The Tribunal then considered the applicant against the complementary protection criterion. The Tribunal found that, based on the lack of credible evidence regarding the circumstances of the marriage and the nature of the agreement with the father-in-law, there is not a real risk the applicant will suffer significant harm if removed from Australia to Bangladesh (at [49]).
The Tribunal affirmed the delegate’s decision not to grant the visas (at [14], [54]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 10 December 2020 contains six grounds of review as follows (without alteration):
1.We were not threatened with physical harm but there are no guarantees that there will not be any physical harm.
2.Member misunderstood when I mentioned all my friends knows about my marriage, I meant the friends who lives in Australia.
3.Member mentioned that I would not take any photos if I wanted to keep it secret but I had to take the pictures so I can submit to the case officer for my partner visa (as a prove) as it was the requirements by the Immigration.
4.My father-in-law knew there was a risk for this marriage that is why he made the Mahr too much (usually less on average) so if we had to separate then suffer as cannot pay the amount.
5.Member also mentioned I did not seek for the approval from my parents as I explained to the member that my sister and brother-in-law are my main guardian and my parents specifically told me whatever decision they are going to take that will be the final decision. For your information, my mother passed on 25th of September and she was suffering from renal failure. All the cost for dialysis, other medication & hospital bill my brother-in-law took care of it. So, my family grateful to him and that is why out of respect they value his (brother-in-law) decision a lot.
6.Member asked whether we wanted a protection visa or remain in Australia and we said for both reasons as we lived here for 7 years and build a life together, have home with out own furniture and everything, have a job.
The applicant appeared before the Court on 13 March 2025 without legal representation. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicants on 10 December 2020 (the affidavit being taken as read and in evidence at the hearing on 13 March 2025), a Court Book numbering 141 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 24 February 2025, and written submissions on behalf of the applicants (handed up during the hearing on 13 March 2025).
The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228 at [18]. Accordingly, at the hearing of this matter on 13 March 2025, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 354-355);
(e)where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]);
(f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28 (Djokovic); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 (SZMDS); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).
However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error. Following this explanation, the applicant sought to rely upon a prepared statement he had brought with him to the hearing. Counsel for the Minister, Ms Rossetto, did not object to the applicant relying upon this statement, which essentially took the form of written submissions and raised no new arguments. The Court accepted the applicant’s written statement and has had regard to it.
In further oral submissions, the applicant said that the Tribunal applied the real chance test incorrectly and that it made an error in its finding that he did not keep his wedding secret from his parents. He also raised concerns about the Tribunal’s findings in respect of the Mahr and the photographs of his wedding.
CONSIDERATION
As outlined above, the application for judicial review contains six grounds asserting jurisdictional error. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).
Ground one
Ground one is a statement that while the applicant was not threatened with physical harm, there is no guarantee that there would not be any physical harm (presumably upon return to Bangladesh). In his written submissions, the applicant clarified this ground and contended that the Tribunal applied the wrong test in respect of ss 36(2)(a) and (aa) of the Act. The applicant argued that the applicable test was to assess whether there is a “real chance” of the applicant facing serious or significant harm upon return, not to assess whether there was a guarantee he would suffer harm. The applicant submitted that it was not necessary to prove that harm was inevitable; only that there is a credible, real risk.
In oral submissions before this Court, the applicant also submitted that the Tribunal did not sufficiently take into account the mental harm he would endure if returned, because of family pressure surrounding the circumstances of his marriage. He argued that an applicant’s evidence must be assessed in its entirety, taking into account the broader political and social context. In particular, the applicant asserted that the Tribunal failed to take into account that his father-in-law was “politically connected”, as well as the general corrupt state of the Bangladeshi government in recent years.
The applicant elaborated upon this in his written submissions. He contended that his father-in-law had demanded an unusually high Mahr, which he said illustrates a “coercive financial imposition” and is designed to serve as “both a punitive measure and a mechanism of control”. He argued that should his marriage fail or a divorce become unavoidable, he would be compelled to pay this sum which far exceeds customary amounts and creates a significant risk of “financial ruin” and “persistent hardship”. The applicant submitted that he would not only face the threat of physical and mental harm on return to Bangladesh, but also the “practical impossibility of fulfilling an onerous financial requirement” which would increase his vulnerability.
In the Court’s view, the Tribunal correctly recognised the test for the refugee criterion, being whether there is a real chance of an applicant facing serious harm, and for the complementary protection criterion, being whether there is a real risk of an applicant facing significant harm. The Tribunal in this matter correctly cited the relevant provisions of the Act and used the correct terminology throughout (see in particular at [2]-[6], [46]-[47] and [50]-[53]). The Tribunal also explained to the applicants that it was required to assess their claims for protection by looking to the reasonably foreseeable future if the applicants were returned to Bangladesh. There was no error in this approach.
It is also not the case that the Tribunal took the approach the applicant said it did. The Tribunal did not at any point say that the applicant needed to establish that harm was inevitable or guaranteed. Nothing in the Tribunal’s approach indicates that this was the manner in which it approached its task. To the contrary, the decision represents an orthodox application of the appropriate statutory test to the applicant’s claims.
Critically, as set out by the Minister in his submissions, the Tribunal found that:
(a)The applicants had not been threatened with, nor did they fear, physical harm by anyone (at [37]);
(b)The applicant’s evidence that he married his wife without his family’s awareness was not credible and inconsistent with country information (at [38]-[40]);
(c)The purported demand from the applicant’s father-in-law to pay a Mahr of AUD84,000 was unusual, and the applicant’s evidence in respect of his father-in-law’s angry reaction to the wedding was inconsistent and lacked credibility (at [41]-[43]); and
(d)The inconsistencies and unusual aspects of the applicant’s evidence, coupled with the timing of the protection visa application, supported the Tribunal’s conclusion that the applicant manufactured his evidence about the family dispute so that he can remain in Australia (at [45]).
Contrary to the applicant’s submission, the Tribunal did assess the entirety of the applicant’s claims, including his claim that he would experience, in his words, “mental torture and anguish”. However, those claims were not accepted. The Tribunal did not reject the applicants’ claims on the basis of an incorrect understanding of the correct legal test. Rather, they were rejected on the basis of their underlying credibility.
No jurisdictional error arises in respect of ground one.
Grounds two and three
Through grounds two and three, the applicants contend that the Tribunal misunderstood the secrecy of their marriage from the applicant’s family in Bangladesh, and consequently, took issue with the Tribunal’s finding that it was unusual to have photos and guests at a purportedly secret wedding.
In his written submissions, the applicant submitted that the photographs contained within the Court Book were taken to comply with visa documentation requirements and “do not negate the personal and cultural complexities involved in [his] claim”. Furthermore, the applicant submitted that the reliance on the ‘secret wedding’ overlooks contextual evidence demonstrating his main fear from his father-in-law’s influence and the consequential risk of persecution.
The applicant then elaborated on these written submissions at the hearing, to argue that whilst the marriage did take place in secret, he submitted photos of his wedding to corroborate that his family did not attend the wedding.
Counsel for the Minister submitted that the Tribunal accurately summarised claims relating to the wedding, notably, that his friends in Bangladesh were aware of the secrecy of their marriage, rather than friends in Australia who were keeping the secret. The Minister submitted that no reference is otherwise made to friends in Australia keeping the marriage a secret, other than a letter from the applicant’s employer who provided that it was kept a secret from both of the applicants’ families rather than just from the first applicant’s family. The Tribunal found that this letter highlighted inconsistencies in the evidence given, as the applicants initially claimed it was just kept secret from the first applicant’s family. In written submissions, the Minister essentially contended that this is a case where, in effect, “the applicant’s application failed because he was not believed” (citing DCC17 v Minister for Home Affairs [2019] FCCA 621 at [6] per Judge Young).
In the Court’s view, it is clear that the Tribunal carefully undertook its task in understanding and considering the applicants’ evidence. It considered at length and in detail the applicants’ claims in respect of the alleged secrecy of their marriage. It accurately set out the applicants’ claims in this respect, including his evidence that his friends in Bangladesh were all aware that the marriage was secret. The Court agrees with the Minister that there is no evidence to support the applicants’ contention that the reference to friends being aware of the secrecy of the wedding was in fact a reference to friends in Australia, save for an oblique reference in a letter from the applicant’s employer.
There is nothing illogical or irrational in respect of the Tribunal’s findings that it was unusual to have photographs of a wedding purportedly carried out in secret. The Court notes that the explanation provided by the applicant that those photographs were necessary for the purpose of their partner visa was not one which was before the Tribunal. Accordingly, there is no error in the Tribunal not considering that explanation.
The Tribunal was required to consider whether or not the applicants faced a fear of harm on return to Bangladesh as a result of their marriage and its surrounding circumstances. Ultimately, it found that it was not so satisfied. In reaching that conclusion, it did not ignore or overlook any relevant aspects of the applicant’s evidence, it did not reach any findings based on irrelevant material, and it clearly understood its statutory task. The findings reached were clearly within decisional freedom. There was nothing illogical or irrational about those findings and they were not reached through an unreasonable process.
No jurisdictional error arises in respect of grounds two and three.
Grounds four and five
On their face, grounds four and five simply seek to provide further explanation of the applicant’s overall claims and circumstances. The difficulty for the applicants is that they do not identify any jurisdictional error in the Tribunal’s decision. In particular, they provide explanations in response to findings made by the Tribunal. Critically, there is no evidence that these explanations were ever before the Tribunal.
Even taking as broad an approach as permissible in considering these grounds, no allegation of recognisable jurisdictional error is discernible.
In light of this, no jurisdictional error arises in respect of grounds four and five.
Ground six
Ground six appears to take issue with the Tribunal’s broader findings about the applicants’ intentions of remaining in Australia. On its face, this ground rises no higher than a disagreement with the Tribunal’s findings. Taking a broader approach, this ground could be construed as an argument that the Tribunal’s findings in this regard were legally unreasonable.
It is well established that the characterisation of a decision as legally unreasonable is not easily made out (Djokovic at [33]). The correct approach is to enquire “whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it” (SZMDS at [133] per Crennan and Bell JJ).
In the applicant’s written submissions, he submitted that, in the several years he has been in Australia, he has “developed stable employment, pursued higher education and maintained secure residential ties” which demonstrate a successful integration into Australia as well as genuine reliance on the safety and stability that Australia offers. He then submitted that this integration “contrasts sharply with the uncertainty and risks he would face in Bangladesh”.
In oral submissions, the applicant reaffirmed that, when questioned by the Tribunal about whether he applied for the visa solely for protection or to remain in Australia, he had applied for both protection and residency reasons. He submitted that he sought to apply for the visa because he completed his Masters degree in Australia, has a stable job and home, and is living a stable life with his partner in Australia.
Insofar as the Minister submitted that the Tribunal’s broader findings were open to it on the evidence, the Court agrees. Such findings were based on reasons that were rational, logically probative and open to it in the circumstances. Where the Tribunal placed weight on the fact that the applicants had lived in Australia for a number of years on certain visas before applying for protection visas, this was ultimately a matter for the Tribunal to decide the amount of weight to place on it within the bounds of legal reasonableness.
No jurisdictional error arises in respect of ground six.
CONCLUSION
The application for review and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 17 April 2025
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