AFU19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 945

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).

1. The applicants seek judicial review of a decision of the second respondent (Tribunal) made on 7 January 2019. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicants a Protection (Class XA) (Subclass 866) visa (visa).
2. Reference in these reasons to 'CB' pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit 'R2'.

1. The applicants are husband and wife. Both are citizens of Bangladesh and first arrived in Australia on 3 September 2013 on Visitor visas (CB 1).
2. On 4 October 2013, the applicants applied for the visa with the assistance of a solicitor (CB 1-179). The first applicant was the primary applicant and claimed protection due to fear of harm of abuse perpetrated by her former husband and his family (CB 18-21). The application included a comprehensive statutory declaration by the first applicant dated 3 October 2013 which explained the applicants' claims for protection (CB 35-40) (Declaration). At paragraph [2] the first applicant said (CB 35):

'I fear returning to Bangladesh because my former husband {name} and his family will kill me and my husband...'

1. The first applicant explained in the Declaration the history of domestic violence perpetrated by her former husband, which was tolerated or ignored by her mother-in-law and father-in-law (CB 36 [9], [12]). The first applicant also explained that her former husband had a history of substance abuse (CB 35-7). The first applicant feared that local authorities would not assist her and her new husband because her former husband's family were wealthy and powerful (CB 37 [14], 38 [29], 40 [40]). The first applicant claimed that on one occasion in April 2009, she reported an assault and threats to kill made by her ex-husband's uncle to the local police, but the police refused to note her complaint (CB 38 [28]-[29]).
2. The first applicant obtained a divorce on 28 July 2009, later remarried on 1 July 2011 and relocated to a different region of Bangladesh but the alleged assaults and threats did not stop (CB 38 [30], 39 [34]). On one occasion on 20 June 2013, the applicants were shot at by three or four unknown men who tried to stop them in the street (CB 39 [37]). The first applicant reported the incident to police, but again the police refused to assist (CB 39 [38]). The first applicant claimed that on 12 August 2013, the first applicant received a phone call during which she was told that she and her husband would be killed within the next three days (CB 39 [39]). A homemade explosive device was then thrown at the applicants' home but did not explode (CB 39 [38]). The applicants reported this to the police but again, there was no action taken (CB 39 [39]). The applicants fled to Australia and applied for the visa.
3. On 14 January 2015, a delegate of the Minister invited the applicants to attend an interview regarding their application for the visa (CB 201-4). The interview was scheduled to take place on 11 February 2015.
4. On 6 February 2015, the solicitor for the applicants sent the delegate a detailed written submission in advance of the interview (CB 209-17). The submission included a confidential psychologist's report prepared by the Asylum Seeker Resource Centre dated 5 February 2015 (CB 215-6). The report recorded that the first applicant was suffering from symptoms of post-traumatic stress, which were worsening.
5. On 9 February 2015, the applicants' solicitor provided a further statement to the delegate from the first applicant's brother (an Australian Citizen) which confirmed that the first applicant's former husband was violent and abusive, and that the first applicant could not avoid his abuse and threats even after remarrying and relocating to another city in Bangladesh (CB 218-221).
6. On 11 February 2015, the interview was rescheduled for 18 March 2015 (CB 225).
7. On 19 June 2015, the delegate of the Minister refused to grant the applicants the visa (CB 226-245, 262-281).
8. On 26 June 2015, the applicants lodged an application for review of the delegate's decision with the then Refugee Review Tribunal (CB 259-60, 283-5).
9. On 29 September 2016, the Tribunal invited the applicants to attend a hearing on 6 December 2016 (CB 292-5). On 25 October 2016, the solicitor for the applicants made a request for access to documents held by the Tribunal under the Freedom of Information Act 1982 (Cth) (CB 303-4). The hearing of the applicants' application for review was adjourned to 16 January 2017 (CB 313-8).
10. On 30 November 2016, the applicants' solicitor notified the Tribunal that the first applicant required a further adjournment of the hearing because of pregnancy and the fear that the stress of the hearing may be damaging to the first applicant's health and the health of her unborn child. A medical report accompanied the request (CB 319-320). The hearing was further adjourned to a date to be fixed (CB 323). The application then lay dormant until 20 December 2017, when it was relisted for hearing on 7 February 2018 (CB 331-2).
11. On 30 January 2018, the solicitor for the applicants submitted comprehensive submissions and evidence in the form of statutory declarations to the Tribunal (CB 350-396). The submissions also included a medical report and clinical notes from the first applicant's treating General Practitioner referring to multiple mental health and medical issues suffered by the first applicant (CB 389-393).
12. On 31 January 2018, the applicants' solicitor submitted a further written submission together with a report from a treating Psychiatrist (CB 397-420). The submission contained a section headed '2. Vulnerability of the Applicant' in which the solicitor explained that the first applicant had a history of poor mental health issues and was highly vulnerable (CB 399-400). The Psychiatrist's report recorded the first applicant's past and continuing psychiatric history (CB 417-20). The first applicant's condition had features consistent with major depressive disorder and post-traumatic stress disorder, required pharmacological management and specialised trauma psychotherapeutic support.
13. On 7 February 2018, the applicants appeared at a hearing before the Tribunal assisted by their solicitor and a Bengali interpreter (CB 427). The applicants gave evidence, and the hearing was further adjourned part heard to a date to be fixed (CB 429).
14. On 13 February 2018, the applicants were invited to a further hearing to take place on 2 March 2018 (CB 440-1). On 2 March 2018, the hearing resumed by video-link. The applicants and their solicitor appeared. Evidence was given by the first applicant's brother and the first applicant's former employer (CB 442). The hearing was adjourned to 24 April 2018 (CB 447-8), then to 5 June 2018 (CB 454-5), then again to 12 June 2018 (CB 462-3).
15. On 5 June 2018, the solicitor for the applicants filed further written submissions for the consideration of the Tribunal (CB 465-480). On 12 June 2018, the hearing resumed (CB 481).
16. On 26 June 2018, the first applicant's solicitor filed with the Tribunal a further statutory declaration from the first applicant (CB 488-92). That statutory declaration addressed concerns arising from the applicants' evidence that were raised by the Tribunal at the hearing on 12 June 2018.
17. On 28 June 2018, the solicitor for the applicants filed further written submissions with the Tribunal (CB 496-508).
18. On 6 November 2018, the Tribunal invited the applicants to comment on or respond to information received by the Tribunal regarding a medical report submitted by the applicants which raised further concerns about the accuracy of one of the applicants' claims (CB 511-3). On the same date, the Tribunal asked the applicants to comment on or respond to other information regarding the first applicant's divorce and evidence she gave to the Tribunal at the hearings (CB 516-7). The solicitor for the applicants then sought an extension of time to respond to the requests for comment, which was granted by the Tribunal (CB 520, 523).
19. On 27 November 2018, the solicitor for the applicants lodged further submissions and evidence in response to the requests for comment (CB 524-541). This included another statutory declaration from the second applicant (CB 535-7). On 28 November 2018, the solicitor for the applicants filed further written submissions (CB 542-547).
20. On 8 January 2019, the Tribunal affirmed the decision of the delegate not to grant the applicants the visa (CB 549-593) (Decision).

1. The Decision contains 242 paragraphs and is forty pages in length. Attached to the Decision is a document designated 'Attachment A' which contains a summary of the criteria for a protection visa set out in s 36 of the Act and Sch 2 of the Regulations. The attachment also contains a summary of the complementary protection criterion and refers to Ministerial Direction No 56 made under s 499 of the Migration Act 1958 (Cth) Act (Act).
2. In the Decision, the Tribunal summarised all of the evidence and listed all of the documents submitted by the applicants in support of their claims. The Tribunal identified the applicants' claims and comprehensively assessed them by reference to the evidence.
3. The Tribunal then addressed the first applicant's claim that she suffered from psychological harm and considered the various medical and psychological reports submitted to the Tribunal (CB 584-5 [198]-[206]). At paragraphs [207]-[208] (CB 585) the Tribunal found:

[208] The applicant presented with a serious demeanour but generally the Tribunal found her to be intelligent, articulate and very responsive to questioning. When matters which may not have been favourable to the applicants' claims were put to her, she responded in a manner which indicated she was thoughtful, persistent and quite resolute in her responses. She did not appear to have any difficulty in giving evidence and did not exhibit any confusion or hesitancy in giving evidence; quite the opposite. She reiterated explanations for anomalies in the evidence several times and was quite determined in arguing her case.

[209] The Tribunal found that the limitations anticipated by her medical advisers as to her capacity to give evidence did not arise when she gave evidence. The Tribunal found her evidence to be extremely detailed and she was quite firm in giving her account of events.

1. At paragraphs [217]-[218] of the Decision (CB 586-7) the Tribunal found:

[217] The Tribunal has considered and weighed the material in the reports and found that the applicant wife's mental health conditions are consistent with the findings made by the Tribunal, in particular its findings in relation to the applicant wife's mistreatment by [OMITTED] and his family during the period of cohabitation and the period immediately following the separation. It also is consistent with the many difficult and traumatic events which have taken place in the last nine years, including her divorce, the death of both parents, the allegations of fraud made against the applicant husband, her miscarriage and fertility problems.

[218] However, the Tribunal does not accept that after the applicant wife's divorce [OMITTED], his family and associates continued to threaten the applicants with harm or attempted to harm them and does not consider that the material contained in the medical reports are evidence that these events took place despite the history provided to the medical advisors by the applicant wife.

1. The Tribunal concluded that it was not satisfied that the applicants have a well-founded fear of persecution for reasons of political opinion, membership of a particular social group or any other Convention related reason (CB 588 [231]). The Tribunal also concluded that it was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia, that there is a real risk either of them will be arbitrarily deprived of their lives or suffer the death penalty or be subject to torture; or to cruel or inhuman treatment or punishment or to degrading treatment or punishment (CB 590 [240]). The Tribunal affirmed the decision of the delegate not to grant the visa.

1. On 23 January 2019, the applicants filed an application for judicial review and supporting affidavit in this Court (CB 596-650). The grounds of review identified in the application were as follows:

(1) The second respondent denied the applicant procedural fairness and therefore constituting a jurisdictional error by:

(a) failing to properly disclose the existence of an undated certificate, produced by the first respondent, pursuant to s.376 of the Migration Act; and where the existence of these documents were relevant, or were potentially relevant, to the issues arising at the review by the second respondent.

1. The hearing of the application for judicial review was listed for hearing in person before this Court on 7 May 2025 at Melbourne.
2. On 10 April 2025, the applicants filed an amended application for judicial review with amended grounds of review as follows:
   1. The second respondent failed to consider a claim arising clearly from the material that the Applicant had a well-founded fear of persecution by reason of the social stigma attached to mental illness in Bangladesh.

a. The second respondent considered whether the Applicant would face significant harm by reason of her diagnosed mental illness as prat of its consideration of the complementary criteria.

b. The second respondent did not consider whether the Applicant had a well-founded fear of persecution of the social stigma attached to mental illness in Bangladesh in circumstances where the claim clearly arose from the material.

1. As directed, the solicitors for the applicants filed and served an outline of written submissions and list of authorities. The solicitors for the Minister also filed and served an outline of submissions and list of authorities.
2. At the hearing on 7 May 2024, the applicants were represented by Mr Sharify of counsel. Mr Lessing of counsel appeared for the Minister.

1. Mr Sharify submitted that a relevantly narrow issue arises, in this case. That issue was whether the first applicant had a well-founded fear of persecution by reason of the social stigma attached to mental illness in Bangladesh. It was submitted that this was a claim that was clearly made by the applicants, or which was apparent from the evidence, which the Tribunal failed to consider and address when assessing the refugee criteria under the Act.
2. It was submitted that the first applicant had a well-founded fear of persecution by reason of her diagnosed mental illness, which the Tribunal considered when addressing the complementary protection criteria but did not consider when assessing the refugee criteria. This was a material jurisdictional error. It was submitted that a reasonably competent Tribunal should have appreciated that the first applicant's mental illness and the stigma attached to that illness could constitute 'serious harm' and should have been considered by the Tribunal when considering the refugee criteria.
3. It was submitted that this was a significant error because the test of 'serious harm' under the refugee criteria has a lower threshold of satisfaction than 'significant harm' under the complementary protection criteria. The error was material because there was a realistic possibility that had the Tribunal considered this claim under the refugee criteria, there could have been a finding that the first applicant was in fact a refugee within the meaning of the Act.
4. Mr Sharify relied on two relevant authorities to support the applicants' submissions. They were EMZ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1052 per Besanko J and BCE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 124 (BCE20) per Jagot, Perry and Snaden JJ.

1. On behalf of the Minister, it was submitted that there was no 'tolerably clear' but 'unarticulated' claim made by the applicants of the kind now articulated by the applicants in the amended grounds of review. It is not the task of this Court to 'ferret around' and construct a claim where none has been made (see NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]-[16] per Allsop J (NAVK) and COE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 669 (COE17) at [9] per Bromwich J).
2. It was submitted that the applicants raised the first applicant's mental health issues as germane to her credibility as a witness. The first applicant's mental health conditions were not put forward as a basis upon which she may suffer serious harm, or persecution should she be removed to Bangladesh. Mr Lessing referred to paragraph [32] of the Decision where the Tribunal recorded the claims actually made by the applicants (CB 559).
3. Mr Lessing also referred to paragraph [238] of the Decision where the Tribunal cites country information prepared by DFAT and refers to the stigma attached to reporting mental illness in Bangladesh. Counsel tendered an affidavit of his instructing solicitor, Matthew Daly, affirmed 23 April 2025 that annexed a copy of the country information referred to by the Tribunal dated 2 February 2018 (Exhibit 'R1'). The affidavit also annexed a copy of the report referred to at footnote #17 to paragraph [238] of the Decision, which is a report titled 'Pathways to care of patients with mental health problems in Bangladesh' (Pathways Report). It was submitted that despite reference to these reports by the Tribunal, the applicants did not raise a claim based on a Refugee Convention nexus for the purpose of s 36(2)(a) of the Act.
4. It was further submitted that the Court should not engage in impermissible merits review based on how the applicants' claims might have been better articulated and a conclusion that a claim arises (but was not expressly stated) is not a conclusion that should be lightly drawn (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [68] per Black CJ, French and Selway JJ).

1. In reply, Mr Sharify referred to the country information and Pathways Report, both of which referred to stigma and discrimination arising from mental illness of patients in Bangladesh. This stigma and discrimination could amount to persecution because of membership of a particular social group within the meaning of the Act to the satisfaction of a reasonably minded Tribunal. The reports also suggest that the discrimination was systematic and not just isolated to random or non-selective acts. The reliance on the country information and Pathways Report by the Tribunal should have put the Tribunal on notice of a claim squarely arising on the evidence that the Tribunal failed to consider.

1. In NAVK at [15] Allsop J (as he then was) said:

[15] The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55] - [63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S 395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71; (2003) 203 ALR 112. From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

1. The claim now articulated by the applicants in the amended application did not in my view arise tolerably clearly from the material itself. The Tribunal was required to assess the claims made by the applicants by reference to all the materials. The claims made were identified by the Tribunal in paragraphs [31]-[33] of the Decision. The Tribunal was asked by the solicitors for the applicants to consider a plethora of materials and submissions provided to the Tribunal over an almost four-year period. Those included some materials relating to the first applicant's mental health which were submitted in advance of her interview with the delegate to explain her anxiety and the possible difficulty she may face in testifying (CB 215-6). A report was also submitted in support of a request for postponement of the Tribunal hearings and by way of corroboration of her claims to be a victim of domestic violence (CB 319-20, 389-393). None of the medical or psychological reports in the Court Book identified the applicant as having a fear of persecution arising from her mental illness.
2. In the submission prepared by the applicants' solicitor dated 31 January 2018 (CB 398-416) and the accompanying psychiatric report (CB 417-20), there is no mention of a fear of persecution arising from the stigma attached to mental illness in Bangladesh or that that stigma was a matter of concern to the first applicant. The solicitor explained that the first applicant was vulnerable and asked that the Tribunal consider this when assessing the credibility and vulnerability of her claims (CB 400). Passages from the psychiatric report were referred to in support of this request but not in support of any broader or alternative claim.
3. In further submissions dated 5 June 2018, the solicitors for the applicants sought to expand on the claims of fear based on gender-based violence by reference to country information (CB 465-480). In particular, that the first applicant's fears were not limited to problems of a private nature but more broadly due to patriarchal norms in Bangladesh culture. Further submissions were provided to the Tribunal dated 28 June 2018 (CB 496-508). Those submissions were directed to reports regarding violence against women and divorced women in Bangladesh together with the absence of reasonable State protection.
4. The claims clearly identified and articulated were the first applicant's fear of persecution and serious harm because of domestic violence, her status as a divorced woman and the lack of reasonable protection from police. At no time did those advising the applicants identify the first applicant's mental health issues as creating a well-founded fear of persecution arising from her mental illnesses. That is relevant. As Bromwich J observed in COE17 at [9]:

[9]...It is not for this Court to ferret around and construct a claim when none has been made, or to isolate an issue that was not readily apparent, especially when the appellant was represented by a migration agent who was also a legal practitioner: see the summary of principles about the duty to consider claims and issues arising from material before the Authority in AYY17 v Minister for Immigration & Border Protection [2018] FCAFC 89; 261 FCR 503 at [18]; see also SZSHK v Minister for Immigration & Citizenship [2013] FCAFC 125; 138 ALD 26 at [37]. As evocatively put by Allsop J, as his Honour then was, almost 20 years ago in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at [15]...

1. Similar observations were made by the Full Court in Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 at [83] per Stone, Foster and Nicholas JJ.
2. The Tribunal did consider the possibility of 'some stigma' arising from the first applicant's mental illness at paragraph [238] of the Decision but found at paragraph [239], that this would not amount to significant harm in the relevant sense for the purpose of complementary protection (CB 589-90). That does not mean that it follows that the Tribunal was bound to consider stigma for the purpose of the refugee criteria if it was not clearly raised as a concern by the applicants in their evidence and submissions.
3. In BCE20, the Court found that the Tribunal failed to consider all of the claims advanced by the applicant. That was a jurisdictional error that was also found to be material. The Court said at [28]:

[28] A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a "substantial, clearly articulated argument" that, if accepted, might establish a well-founded fear of persecution for a Convention reason or a basis for extending complementary protection: Dranichnikov, 394 [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319, 356 [90] (the Court).

1. However, the claims there made by the applicant included a claim that the applicant would be socially isolated due to his mental illness. The Tribunal erroneously considered only a claim that a lack of adequate medical care would occasion social isolation. There was a clearly articulated separate or second claim that mental illness alone would lead to social isolation. This claim was overlooked by the Tribunal, which was a failure to discharge the statutory task. The Tribunal was then required to assess whether that claim would result in the risk of serious harm or significant harm for the purpose of s 36(2)(a) and (aa) of the Act. The Court also found the error to be material.
2. The facts and claims in this case can be distinguished from the facts and error in BCE20. In this case, there was not a claim made by the applicants that the first applicant's mental illnesses would lead to social stigma and that stigma was a basis for a well-founded fear of persecution because of the risk of serious harm. The Tribunal observed that country information and the Pathways Report referred to stigma and discrimination associated with mental illness in Bangladesh but did not consider such stigma to be significant harm. That observation did not amount to recognition of, or a failure to, consider a claim clearly made that might establish a well-founded fear of persecution for a Convention reason.

1. There was no jurisdictional error of the kind identified by the applicants in the amended application for judicial review, however if there was a failure to consider a claim that was tolerably clear from the materials, then that error was not in my view material and therefore there was no jurisdictional error that requires the Court to remit this matter to the Tribunal to reconsider the Decision in accordance with the law.
2. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT) at [9] and [10], the Full Court identified the two questions to be determined when undertaking judicial review of an administrative decision. The Court said (omitting citations):

[9] Where it is alleged in an application for judicial review that a decision is affected by jurisdictional error constituted by a breach of an express or implied condition of a conferral of decision-making authority by a statute which incorporates a requirement of materiality, there are two questions: has an error occurred; and, if so, was that error material.

[10] The inquiry posited by each question is wholly backward-looking. Both questions are to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made. Those are facts in respect of which the applicant for judicial review bears the onus of proof on the balance of probabilities. Proof of these facts ought to be neither difficult nor contentious.

1. The applicants contend that the failure by the Tribunal to consider the unarticulated claim was material because had it been considered, the Tribunal could have concluded that the first applicant was a refugee within the meaning of the Act. However, as the Court in LPDT also observed at [13] (omitting citations):

[13] The applicant must satisfy the court on the balance of probabilities that the alleged error in fact occurred. Unless the error is of a type such as those identified at [6] above (where the error is always material and therefore jurisdictional), whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application.

1. The applicants must prove that the Decision could, not would, 'realistically' have been different had there been no error. The answer to that question is to be determined from the Tribunal's reasons and the totality of the evidence (LPDT at [32] and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [38]). The threshold is not high and the burden is 'undemanding' or 'not onerous' (see Nathanson v Minister for Home Affairs [2022] HCA 26 at [33] per Kiefel, Keane and Gleeson JJ and at [47] per Gageler J). Here, there was no evidence that the first applicant feared persecution in Bangladesh as a result of her mental illnesses. There was also no evidence that the discrimination suffered by people with mental illness in Bangladesh was 'systematic and discriminatory' as required by the Act (see ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426 at [5]-[8] per Katzman J). The Tribunal was not satisfied that the stigma suffered by persons who suffer mental illness in Bangladesh would amount to 'significant harm' for the purposes of complementary protection (CB 590 [239]). Whilst the test of 'serious harm' is different to the test of 'significant harm' and requires a lesser level of satisfaction, nevertheless the Tribunal found that there was only 'some stigma' likely to be suffered by the first applicant. This would not equate to serious harm under s 5J(5) of the Act as defined. The Tribunal also observed that the applicant was an educated, intelligent and articulate witness and accepted that she was still quite affected by her experience and mistreatment. However, her mental health issues related to past treatment and trauma, and were capable of treatment in Bangladesh (CB 584-7 [198]-[217], 590 [239]). In the circumstances of this case and given the Tribunal's findings at [198] to [218] of the Decision regarding the first applicant's health and mental health, the Decision would not 'realistically' have been different had the Tribunal considered the stigma potentially suffered by the first applicant when assessing the refugee criteria (CB 548-587). Therefore, the Decision does not reveal a material jurisdictional error.

1. The name of the Minister was changed on 13 May 2025 to 'Minister for Immigration and Citizenship'. The name of the first respondent and the title of the proceeding will be changed accordingly.
2. Following the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to 'Administrative Review Tribunal'. An order will be made amending the name of the second respondent and the title to the proceeding.

1. In the outline of written submissions filed 3 April 2025, the Minister seeks an order for costs if the application for judicial review is dismissed, fixed in the sum of $8,371.30 which is the scale figure for a contested application prescribed in Sch 2, Pt 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). That amount is fair and reasonable and should follow the event of this application. The applicants are ordered to pay the Minister's costs and disbursements of and incidental to this proceeding fixed in the sum of $8,371.30.

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 amended application for judicial review dated 10 April 2025 be dismissed.
4. The applicants pay the first respondent's costs and disbursements of an incidental to the proceeding fixed in the sum of $8,371.30.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.