AXV19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 427

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. By their application made on 7 March 2019, the applicants seek judicial review of a decision of the former Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the (then) Minister for Immigration and Border Protection refusing to grant the first applicant a Protection (Class XA) (Subclass 866) visa and refusing to grant the second applicant a visa as a member of the first applicant's family unit.

1. The first applicant is a citizen of Bangladesh who arrived in Australia on 16 September 2014 with her son, the second applicant, on a Visitor (Class FA) (Subclass 600) visa: Court Book (CB) 209. The first applicant applied for a protection visa on 9 December 2014 with the assistance of a solicitor and migration agent: CB1-CB18; CB76-CB92, and was granted an associated Bridging A (Class WA) (Subclass 010) visa: CB163-CB164. The second applicant was included in the application as a member of the same family unit: CB8-CB18; CB105-CB111. The application was accompanied by the first applicant's Statutory Declaration made on 8 December 2014: CB93-CB103, which detailed the first applicant's protection visa claims, contending that she feared harm from her former husband who was violent and emotionally abusive. The first applicant claimed that she was ridiculed and ostracised for being a Shia Muslim. She claimed to fear harm in Bangladesh from her former husband and his family, from the Sunni Muslim community because of her Shia Muslim religion, and because she is a divorced woman and a single mother. The first applicant claimed that there was no place in Bangladesh to which she could relocate so that she would be safe from feared harm and that it would be difficult for her to move to another part of Bangladesh as a single mother without family support or employment connections. The first applicant claimed that the local Bengali authorities "do not protect women at all and regard family violence as a private matter": CB93 at [2].
2. Receipt of the protection visa application was acknowledged on 28 January 2015: CB150-CB157. On 20 December 2016, the delegate invited the first applicant to attend an interview scheduled on 23 January 2017 to discuss the claims in her application: CB168-CB171, and enclosed with the correspondence an 'Important information about your protection visa interview' factsheet: CB172-CB180. By email transmission on 23 December 2016, the first applicant's migration agent informed the Department that neither she, nor the first applicant were available on the scheduled interview date, and a case officer from the Department confirmed on 4 January 2019 by reply email that the interview date was re-scheduled to 6 February 2017: CB182-CB183. On 1 February 2017, by email transmission, the migration agent provided the Department a Supplementary Statement in support of the applicant's visa application. The applicants' migration agent informed the Department that "there were some minor errors" in the prior Statutory Declaration, and that "[the first applicant] wanted to clarify and provide further information about certain related matters". The migration agent also noted that the first applicant completed the Supplementary Statement "with the assistance of a friend": CB181. The Supplementary Statement similarly detailed the first applicant's protection visa claims: CB184-CB201.
3. The first applicant attended the scheduled interview at which she was assisted by a Bengali interpreter: CB209. On 23 February 2017, a delegate refused the applicants' visa application, and a notification of the delegate's decision was transmitted to the first applicant by post: CB204-CB207 enclosing a copy of the decision record: CB208-CB229. The delegate was not satisfied that the first applicant is a person in respect of whom Australia has protection obligations under s 36 of the Migration Act 1958 (Cth) (Act) and cl 866.221 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). Accordingly, the second applicant's visa was refused as he was not a member of the same family unit to a visa holder: CB229.

1. The applicants applied to the Tribunal for a review of the delegate's decision: CB230-CB232. The Tribunal acknowledged receiving the application on 11 March 2017 by letter dated 16 March 2017 dispatched by email, noting that the validity of the application had not yet been assessed and enclosed an 'Information for review applicants' factsheet: CB259-CB266.
2. The first applicant provided further evidence and documents in support of the review application which was received by the Tribunal on 14 March 2018. The documents included: a written submission dated 9 March 2018: CB267-CB275; a copy of a report by a Professor from the University of Dhaka, Department of Sociology on the topic of single mothers, divorcees and unmarried women in Bangladesh: CB276-CB280; an image of her grandfather with Gandhi: CB281; university certificates for master, bachelor and certificate level courses: CB282-CB284; copies of two cases before the Refugee Review Tribunal and one case before the New Zealand Immigration and Protection Tribunal in relation to women experiencing harm in Bangladesh: CB285-CB331; a certified translation of a divorce notice served by the first applicant on her former husband: CB332-CB336; a Migration Agent's Registration Authority Service Complaint, and copies of email correspondence between the first applicant and her former migration agent evidencing the latter ceasing to act: CB337-CB342; various articles on the subject of domestic violence in Bangladesh: CB343-CB374; and a court-ordered intervention between the applicant's sister and her brother-in-law: CB375-CB377.
3. The first applicant's written submissions dated 9 March 2018 referred to, inter alia, the discrepancies between her Statutory Declaration submitted on 8 December 2014 and her Supplementary Statement submitted on 1 February 2017: CB267-CB275. She attributed the discrepancies to her legal representative's professional negligence and gave further reasons as follows at CB269:

I was not confident that the initial statement conveyed my experiences, in Bangladesh, and my whole claim appropriately.

...

... at the time when I lodged my protection visa application and gave my initial statement to my former agent my mental and physical state was not good. I was totally confused in this new world and society. I was going through a lot of medical complications following my arrival in this country. I had to undergo major surgeries in (sic) two occasions here in Melbourne, Victoria. ... I surely accept that there were some discrepancies in my initial written statement and further in my interview with the department but there was nothing deliberate or intentional.

1. By correspondence dated 11 September 2018, the Tribunal invited the applicants to attend a hearing scheduled for 2 October 2018 to give evidence and present arguments relating to the issues in their case: CB385-CB386. The correspondence enclosed an 'Information about hearings' factsheet: CB387-CB390, and requested the applicants complete and return a 'Response to hearing invitation - MR Division' form to confirm attendances at the hearing and to provide the Tribunal with any additional or new information which the applicants might wish the Tribunal to consider: CB391-CB393. The first applicant returned a completed 'Response to hearing invitation' form and indicated her intention to appear at the scheduled hearing: CB395-CB397.
2. The first applicant appeared at the scheduled hearing with the assistance of a Bengali interpreter: CB398; CB453. During the hearing, the first applicant provided the Tribunal copies of email correspondence between her and her former legal representative, and between her and the Office of the Migration Agents Registration Authority in relation to her complaint about her former migration agent: CB402-CB440. Following the conclusion of the hearing, on 7 October 2018, the first applicant provided the Tribunal, pursuant to its request during the hearing, a certified true copy of the original marriage certificate document between her and her former husband on the question of whether she had a legal right to divorce her husband: CB441; CB458. The first applicant enclosed with the correspondence a written submission dated 8 October 2018, stating that "this (sic) sort of divorce rights are not mentioned in the marriage certificate": CB442, and provided a letter signed by a solicitor advocate in Bangladesh dated 4 October 2018, establishing her divorce rights and her claim to be a "successful divorcee": CB443-CB444; CB458.
3. By its decision made on 11 February 2019, the Tribunal affirmed the delegate's decision refusing to grant the applicants a protection visa. The applicants were notified of the Tribunal's decision by email transmission on 12 February 2019: CB448, which attached a copy of the Tribunal's Statement of Decision and Reasons (Decision): CB452-CB475, and an 'Information about decisions - MR Division' factsheet: CB449-CB451.

1. The Tribunal's decision begins with a summary of the background to the review application, including a summary of the delegate's decision: at [1]-[8]. That which follows at [9]-[14] are the Tribunal's summaries of the first applicant's: protection visa claims set out in her Statutory Declaration dated 8 December 2014; Supplementary Statement by the first applicant's representative provided 1 February 2017; further submission dated 9 March 2018; and supporting documents enclosed with the submission.
2. At Attachment A to the Decision, the Tribunal set out that which it identified as the applicable law and relevant protection visa criteria, by reference to ss 5, 36, 91R, 91S, 499 of the Act, Sch 2 to the Regulations, Ministerial Direction No.56, and Article 1 of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Convention). The Tribunal noted the criterion in relation to the second applicant who is a member of the same family unit, referencing ss 5(1) and 36, and reg 1.12 of the Regulations, and referred in its Decision to the 2016 and 2018 Country Information Report of Bangladesh by the Department of Foreign Affairs and Trade (DFAT) in assessing the first applicant's protection visa claims.
3. The Tribunal discussed its findings and reasons at [15]-[58] of the Decision, noting at [15] that the issue before the Tribunal was whether the first applicant faced a real chance of suffering treatment that would amount to persecution involving serious harm, and whether there is a real risk she will suffer significant harm if returned to Bangladesh pursuant to s 36(2)(aa) of the Act. The Tribunal concluded at [16] that the decision under review should be affirmed, and proceeded to discuss its assessment of the first applicant's protection claims.
4. The Tribunal noted at [23] of the Decision that it "ha[d] significant concerns regarding the [first] applicant's credibility" and identified that which it regarded as significant discrepancies between her 8 December 2014 Statutory Declaration and her 1 February 2017 Supplementary Statement. During the hearing, the Tribunal asked the first applicant about the discrepancies, and the Decision records that she stated that after the application was submitted by her legal representative, she sought a translation by her Bengali friend who assisted her to prepare a revised statement in English, which was subsequently submitted on 1 February 2017. The Tribunal records that it endeavoured to discuss the discrepancies between the two statements and notes the first applicant's response as "she is not very comfortable talking about her initial statement as she made many mistakes when that was prepared": at [25]. The Tribunal observed that as the initial statement was prepared over a significant period of time with an experienced legal practitioner and the assistance of a Bengali interpreter, it did not accept that the discrepancies were a product of unintentional error or oversights. The Tribunal put the first applicant on notice that her credibility was an issue and that it could not ignore her initial statement. The Tribunal considered that "the applicant chose quite deliberately to manufacture and alter the elements of her account over a period of time", and found that this raised serious questions about her motives and the credibility and veracity of her claimed genuine statement.
5. The decision also records some of the first applicant's viva voce evidence as follows:

(a) she attended a mosque once, or twice, but she no longer goes as she doesn't have an interest in religion nowadays and prefers humanitarian activities. She does not give her son religious education, and is otherwise indifferent to traditional religion: at [28], [30];

(b) she sent a legal notice to her former husband for a divorce, but he refused to sign the papers. Despite his refusal to sign, the first applicant indicated that in accordance with Bangladeshi law, there is no requirement for the ex-husband to agree to the divorce, and she unilaterally divorced him: at [38];

(c) she fears that her former husband will seek to take custody of her son, and fears physical harm from her former husband and his family members who may harm her on his behalf: at [43]; and

(d) her primary fear is the Bangladeshi society because her former husband will tell 'society' that she is a divorcee, a single mother and a Shia convert, and that "society hates all these things": at [45].

1. The Tribunal dealt with the applicant's claims as follows:

(a) it accepted that the first applicant had some general knowledge about the difference between Shia and Sunni ideology, but given her low level of commitment to any religion, the Tribunal did not accept that she converted to Shia Islam in 2003, and considers that she concocted her claim for the purposes of the protection visa application: at [30];

(b) it found that the first applicant would not practice as a Shia Muslim if she returned to Bangladesh, and based on country information reports, does not accept that Shia Muslims are isolated, ostracised or persecuted in Bangladesh: at [31];

(c) it considered that aspects of the first applicant's claim concerning the circumstances in which she obtained a divorce were inconsistent: at [41]-[42];

(d) it accepted that the first applicant separated from her former husband in February 2013 and that she may have suffered domestic violence in the relationship, but considered she exaggerated the extent to which her freedoms were curtailed by her former husband and his family: at [43];

(e) it considered that as the first applicant's former husband did not take legal action or use physical force to regain custody over his son, it was unlikely that he would seek custody of the second applicant if the first applicant returned to Bangladesh: at [43];

(f) it considered that there is not a real chance that the first applicant would be subjected to physical violence if she returned to Bangladesh because she did not experience a violent attack from her former husband, or any party associated with him: at [43];

(g) it considered that the first applicant's former husband may have very well consented in the first applicant obtaining a passport and travelling to Australia, but accepted that his signature may also have been forged by either the first applicant, a family member or some person acting on her behalf: at [44];

(h) it found that the first applicant had not been truthful and consistent in her evidence throughout the lodgement and processing of her protection visa application, which made it difficult for the Tribunal to sort the facts from fiction: at [44];

(i) it considered that the totality of evidence did not support the conclusion that the first applicant's former husband or members of his family are motivated to cause the applicants serious harm should the first applicant return to Bangladesh: at [44];

(j) it found that the first applicant and her son do not face a real risk of persecution involving serious harm from the first applicant's former husband, his family members or from people acting on their behalf: at [44];

(k) the Tribunal did not accept that the applicant is a Shia convert, nor that her former husband and family will have an interest in vilifying or harming her as a divorcee and as a single mother, nor that they will seek to portray her as a convert to Shia Islam: at [46], [49];

(l) the Tribunal referred to the 2018 Country Report by DFAT regarding treatment of single and divorced women in Bangladesh but observed that, as the first applicant is highly educated and worked as an assistant teacher, she is significantly less vulnerable to gender-based harm and violence: at [48];

(m) it considered the first applicant could live with family members in Bangladesh temporarily (with her father in Rajbari, her elder brother in Dhaka, or her elder sister and her husband in Dhaka) until she finds her feet, and that she can seek long-term accommodation with or near her elder brother or sister. The Tribunal did not accept the first applicant's assertion that no landlord would provide her, as a divorcee and single mother, with rental accommodation, noting that she had previously rented a property as a single mother whilst separated from her husband: at [51];

(n) it accepted that the first applicant and her son will likely face some societal discrimination, and may be criticised or ostracised by members of the community and that the first applicant may be subjected to some unwelcome male attention: at [50], [52]; and

(o) it did not accept that the applicants will face a real chance of suffering persecution amounting to serious harm from Sunni Muslims or the Bangladeshi community because of the first applicant's status as a member of the particular social groups comprising divorced women or single mothers in Bangladesh: at [52].

(a) the first applicant did not face a real chance of suffering persecution involving serious harm because she has been or will be perceived to follow Shia faith: at [31];

(b) the applicants did not face a real risk of persecution involving serious harm from either her former husband and his family, or persons acting on their behalf: at [44];

(c) the applicants will not face a real risk of treatment amounting to serious harm: at [50], [52]; and

(d) the applicants will not face a risk of suffering persecution amounting to serious harm from the first applicant's former husband, his family members and/or their associates, or the Bangladeshi community because of the first applicant's religion, her divorcee status or the fact that she is a single mother: at [53], [58].

1. Consequently, the Tribunal concluded the applicants did not meet the refugee criterion with respect to s 36(2)(a) of the Act, nor are they persons in respect of whom Australia has protection obligations under s 36(2)(aa): at [59]-[60]. Accordingly, the Tribunal affirmed the delegate's decision not to grant the applicants protection visas: at [62].

1. The earlier mentioned judicial review application advances a single ground of review as follows:
   1. The Tribunal found that upon any return to Bangladesh, the [first] applicant might need to reside with her father in Rajbari to avoid harm (Reasons [51]). The applicant had resided there prior to her departure from Bangladesh, and upon any return there, residing in Rajbari would involve relocation. However, the Tribunal failed to conduct a relocation analysis with respect to her claims to complementary protection.
2. In short compass, the applicants contend that the Tribunal accepted at [50] of the Decision, based on the available country information, that single women, or divorced women, are exposed to gender-based violence in Bangladesh. And at [51], it found that the first applicant could live near her father (regionally, in Rajbari), or near to one of her siblings in Dhaka, to avoid the threat of gender-based violence by gaining support and a degree of protection from these family members, and it considered the first applicant could live with one of the identified family members while she finds her feet on return to Bangladesh.
3. The applicants contend that where, as here, the Tribunal having found the first applicant would need to make adjustments to their life (by living with an identified family member), even if temporarily, to avoid a risk of persecution of significant harm, and where there is any geographical dimension to the adjustment - for example, to move to a new part of the country, or reside in only one part of the country, or not to enter some part of the country - the internal relocation principle will arise. Consequently, the Tribunal is required to assess whether the adjustment is reasonable. The applicants contend that the notion of the first applicant living with her father in Rajbari, even if only temporarily, was a matter of relocation for the first applicant. To the same end, so too would be residence in Dhaka close to one of her elder siblings. Each amount to an adjustment to that which might otherwise be the first applicant's residential choices.
4. The applicants contend that the Tribunal could not rely on its findings at [51] to determine that the first applicant would not be at risk of serious harm without first undertaking an assessment of the reasonableness of relocation.
5. The first respondent contends that the applicants misunderstand the Tribunal's reasons set out at [50] and [51] of the Decision and says the principle of internal relocation did not arise. The issue of relocation did not arise, so the first respondent submits, because there was no finding by the Tribunal of a real chance of persecution in any place to which the first applicant is likely to return.
6. The first respondent contends that the Tribunal did not find:
   • that there was a part of Bangladesh to which the first applicant was likely to return where she would face a real chance of suffering persecution amounting to serious harm; nor
   • that she would be required to move to Rajbari or particular parts of Dhaka in order to avoid harm elsewhere.
7. The first respondent says the Tribunal variously concluded at [50], [52] and [58] of the Decision that the applicants did not face a real risk of persecution amounting to serious harm and that its discussion at [48] shows that the Tribunal's assessment of the risk of persecution amounting to serious harm was not determined solely by the available country information. Rather, it also took into account the first applicant's particular circumstances - her level of education, the support of her family and the availability of a male protector in the form of her father and elder brother. Accordingly, the first respondent contends the Tribunal's assessment that the first applicant could live with her father, or one of her elder siblings while she finds her feet on return to Bangladesh and could seek accommodation in Dhaka in the longer term at [51] was, or involved, the Tribunal assessing the place or places to which the first applicant was likely to return. Having identified those likely places, the first respondent contends the Tribunal then assessed whether the applicants would face a real chance of persecution in those places, finding that they would not, because they had a degree of familial support and protection. It follows, according to the first respondent, that the Tribunal did not err if it failed to consider relocation.
8. In the alternative, the first respondent says that if the Tribunal found that the first applicant faced a real chance of serious harm in some part of Bangladesh, the Tribunal's reasons show that it considered that any relocation to either Rajbari or near her elder siblings in Dhaka was reasonable. The first respondent contends the Tribunal:
   • found that the first applicant had family support in areas where she could live: Decision at [51];
   • did not accept that she would be unable to rent accommodation, as she was able to in the past as a divorcee and single mother: Decision at [51]; and
   • reasoned that because of the first applicant's qualifications and prior professional experience, she was well placed to find professional level employment: Decision at [52].
9. The first respondent says therefore, the Tribunal considered the matters that the first applicant contended made relocation unreasonable, but did not accept them. And having considered and rejected those matters, the first respondent says it may be inferred the Tribunal found it was not unreasonable for the first applicant to relocate to Rajbari or near her elder siblings in Dhaka. Accordingly, so the first respondent contends, no further assessment of the reasonableness of relocation as it related to the definition of 'refugee' was separately required.
10. The description of a 'refugee' in Article 1A(2) of the Convention was drawn into s 36(2)(a) of the Act until its repeal and replacement by the Migration and Maritime Powers Legislation Amendment (Resolving the Legacy Caseload) Act 2014 (Cth). And as the visa application the subject of consideration by the delegate and the Tribunal was made prior to the commencement of those amendments, the visa application was to be determined by reference to the definition of 'refugee' as in force at that time.
11. The applicants' review ground raises for consideration whether the internal relocation principle arose for consideration by the Tribunal, and if so, whether the Tribunal correctly applied the principle. As French CJ, Hayne, Kiefel and Keane JJ observed in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45, 254 CLR 317 at [21]:

The "internal relocation principle" is well established . . . a person is not a refugee within the meaning of the Convention if he could avail himself of the real protection of his country of nationality by relocating to another part of that country.

If a person could have relocated to a place within his own country where he could have no well-founded fear of persecution, and where he could reasonably be expected to relocate, then the person is outside the country of his nationality because he has chosen to leave it and seek asylum in another country. He is not outside his country owing to a well-founded fear of persecution for a Convention reason. The person is not, within the Convention definition, a refugee: SZSCA at [23].

1. If the internal relocation principle arises, the Tribunal must consider "what is 'reasonable', in the sense of 'practicable'", and the answer will "depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality": SZATV v Minister for Immigration and Citizenship [2007] HCA 40, 233 CLR 18 at [24]. But SZSCA makes clear that the requirement to consider what is reasonable (practicable) is not confined to circumstances where a person might be expected to relocate to another region of that person's country of nationality. The consideration is also relevant "when the Tribunal identifies an area where the visa applicant may be safe, so long as he or she remains there": SZSCA at [20]. As French CJ, Hayne, Kiefel and Keane JJ explained:
   1. The factum upon which the principle of relocation operates is that there is an area in the visa applicant's country of nationality where he or she may be safe from harm. In this matter it was found by the Tribunal that Kabul was such a place. By analogy with the internal relocation principle, given the existence of a place within his country of nationality where the respondent would have no well-founded fear of persecution, it could not be concluded that he is outside Afghanistan and unable to return to that country owing to a well-founded fear of persecution if it could reasonably be expected that he remain in Kabul and not travel outside it. As in SZATV, it is the question of what may reasonably be expected of the respondent which must be addressed.
   2. The UNHCR Handbook recognises that persecution of a particular group may occur in only one part of a country, and that in such situations a person will not be excluded from refugee status merely because he could have sought refuge in another part of the country, if in all the circumstances it would not have been reasonable to expect him to do so. In Januzi, Lord Bingham, in an observation referred to in SZATV, said that the corollary of this proposition is that a person will be excluded from refugee status if, in all the circumstances, it would be reasonable to expect him to relocate to another part of the same country.
   3. In SZATV the Minister submitted that what is "reasonable" in this context is to be equated with what is "practicable". Gummow, Hayne and Crennan JJ accepted this submission, but added:

"However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is 'reasonable', in the sense of 'practicable', must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality."

1. In SZATV the effect of the Tribunal's decision was that the applicant was expected to move to another region of Ukraine and live "discreetly" so as not to attract attention. It was observed that, in S395, the notion that the applicants could avoid persecution by living "discreetly" had been rejected. In SZATV it was held that the Tribunal had sidestepped consideration of what might reasonably be expected of the applicant with respect to his relocation. This presented an error of law going to an essential task of the Tribunal - determining whether the applicant's fear of persecution was well founded in the Convention sense, and thus also for the purposes of s 36(2)(a) of the Migration Act.

2. The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul. The Tribunal therefore did not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm. This was an incorrect approach. Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it. An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned - specifically, whether such an expectation is reasonable.

3. In Januzi, the House of Lords approved the approach of the Court of Appeal in E v Secretary of State for the Home Department as to the nature of the test to be applied to determine whether an asylum seeker could reasonably be expected to move to a safe haven within his or her country of nationality - that is, to internally relocate. In the respects relevant to this matter, the Court of Appeal said:

"Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there ... Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country is 'outside the country of his nationality by reason of a well-founded fear of persecution'."

The nature of the test was said to involve "a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker."

1. In the present case it is not just the living conditions for the respondent in Kabul - and whether he would face a real chance of persecution if he stayed there - which should have been considered by the Tribunal. Rather, it was necessary for the Tribunal to consider the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business. Addressing this question properly may have raised various issues for the Tribunal's consideration. At the least, the question clearly directs attention to the respondent's ability to earn an income from other sources and to his needs and those of his family.
2. The Tribunal did not address this question. It did not address what was necessary to an enquiry whether it was reasonable to expect the respondent to remain in Kabul and not drive trucks outside it. It made one assumption - that the respondent would be able to work as a jewellery maker in Kabul, as he had formerly done in Jaghori. This assumption does not appear to have been put to the respondent for his comment. The respondent had raised concerns about his ability to earn a living if he were to return to Afghanistan, but the Tribunal did not explore this subject with him.
3. This matter does not fall to be decided on grounds of procedural fairness. Even if the Tribunal's assumption were correct, that assumption could not provide a complete answer to the question the Tribunal should have addressed. Without addressing the question whether it would be reasonable to expect the respondent to remain and work in Kabul, having regard to the circumstances in which that would place him, the Tribunal could not make a final determination as to whether he could be said to have a well-founded fear of persecution. Failure to address this question constituted an error of law.

1. Central to the issue in dispute here is the Tribunal's reasoning and conclusions at [50]-[51] of the Decision, which are reproduced in full below:
   1. Like the delegate, the Tribunal notes that despite constitutional provisions preventing discrimination and legal prohibitions against gender-based violence, DFAT assesses that most Bangladeshi women face persistent societal discrimination and the threat of gender-based violence. The Tribunal accepts that the applicant and her son will likely face some societal discrimination in the form of being criticised and/or ostracised by some members of the community and that [the first applicant] could possibly be subjected to some unwelcome male attention, but does not accept that they face a real risk of treatment amounting to serious harm.
   2. In this regard the Tribunal finds that it is significant that the applicant has a positive relationship with her family in Bangladesh. She has indicated that her father, while retired and now living in his ancestral home in Rajbari, is comfortably well off having received a lump sum pension and having 'lots of land'. She has indicated that she received very strong support from her elder brother while she was in Bangladesh and also received strong support from her elder sister and her elder sister's husband. She has lived as a single woman with her son in Dhaka in the past. The Tribunal considers that [the first applicant] could live with one of these family members while she finds her feet on return to Bangladesh and that in the longer term could seek accommodation close to either her elder brother or elder sister in Dhaka where she could gain support and a degree of protection from them and their families. The Tribunal does not accept her assertions that no landlord will rent her a house if they know she is a divorcee and a single mother, noting that she has previously rented accommodation as a single mother while separated from her husband, and noting that she has the support of her father and elder brother.
2. The Tribunal at [50] appears to conclude that although most Bangladeshi women face persistent societal discrimination and the threat of gender-based violence, that the applicants will likely face some societal discrimination in the form of being criticised or ostracised by some members of the community and that the first applicant could be subjected to some unwelcome male attention, it did not accept the applicants faced a real risk of treatment amounting to serious harm. In substance, the Tribunal here made the same finding as did the delegate in the decision the subject of review. But fairly read in context, the conclusion is not at large. It is, as the applicants correctly contend, a conclusion reached for the reasons given in [51]. The first respondent accepted without demur that the Tribunal stated its conclusion (at [50]), and then the reasoning for it (at [51]).
3. But the first respondent says the Tribunal did not find that there was a part of Bangladesh to which the first applicant is likely to return where she would face a real chance of suffering persecution amounting to serious harm, nor did it find that she would be required to move to Rajbari or parts of Dhaka to avoid harm elsewhere. As earlier noted, the first respondent says that the Tribunal was not making an assessment at [51] about relocation nor was it making a finding that would require a practicability of relocation assessment to be undertaken. Rather, so the first respondent contends, the Tribunal was making a finding about the place or places to which the first applicant is likely to return and then assessing whether the applicants would face a real chance of persecution in those places - ultimately finding that they would not because they had familial support.
4. The first respondent's contentions cannot be accepted. Read fairly and in context, and cognisant of the well-established principle that administrative decisions under review should not be construed with an "eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic [1993] FCA 322, 43 FCR 280 at 287, cited in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259 at 272, I do not consider the Tribunal was merely identifying the place or places to which the first applicant is likely to return and then assessing the risk to the applicants in that or those places. I agree with the applicants' contention that the Tribunal at [50] finds, or at least assumes in the first applicant's favour, that she is a person who may be within a category that is at risk of gender-based violence if she returned to Bangladesh. The Tribunal next propounds a conclusion that it does not accept the applicants face a real risk of treatment amounting to serious harm - presumably including the risk of gender-based violence amounting to serious harm. Why? Because as the Tribunal explains at [51], the first applicant "could live with one of [her] family members" her father in Rajbari or her elder siblings in Dhaka "while she finds her feet on return to Bangladesh" and in the longer term she "could seek accommodation close to either her elder brother or elder sister in Dhaka where she could gain support and a degree of protection" from her siblings and their families. In other words, the Tribunal reasoned that the applicants would not be at "real risk of treatment amounting to serious harm" if the first applicant returned to Bangladesh and lived with, and then later close to, one of the identified family members. This reasoning is reinforced at [52] where the Tribunal records that it did not accept that the applicants face "a real chance of suffering persecution amounting to serious harm from conservative/fundamentalist Sunni Muslims or the Bangladeshi community generally due to [the first applicant's] status as a member of the particular social groups comprising divorced women and/or single mothers in Bangladesh". This in part was said to be because of the first applicant's past resilience and that she was in a category of educated and professional women who would be less vulnerable, but also because of the "close family support that she is likely to receive on return to Bangladesh". Read in context, that is the family support obtained for the living arrangements contemplated in [51].
5. The Tribunal's reasoning was in substance that, to avoid a risk of persecution amounting to significant or serious harm, the first applicant would need to make adjustments to her life, both temporarily on return to Bangladesh, and then in the longer term. As the applicants correctly point out, there is a geographical dimension to the adjustments required. On the Tribunal's analysis, the first applicant is to reside in one of two identified parts of Bangladesh and then with and later close to the identified relatives. But it is not just a question whether the applicants would face a real chance of persecution if the first applicant lived in either Rajbari or Dhaka with or near the identified relatives which provides the correct answer or a final determination to the ultimate question whether the first applicant could be said to have a well-founded fear of persecution if she returned to Bangladesh.
6. Before leaving Bangladesh, the first applicant was married but separated. She subsequently divorced. After separating and before departing for Australia, the first applicant lived with her son in Dakar. While living in Dakar, she did not live with either of her elder siblings, and she self-evidently did not live in Rajbari, with or near her father or otherwise. In the circumstances, which as earlier noted, involved a geographical dimension to the adjustment the Tribunal was contemplating, it was necessary for the Tribunal to consider the impact of the adjustment on the first applicant and whether it would be reasonable (or practicable) to expect her to make the adjustment. The Tribunal did not do so and thereby committed jurisdictional error. The error was material.
7. I do not accept the first respondent's alternative contention that the Tribunal considered any relocation by the first applicant to either Rajbari or near her elder siblings in Dhaka was reasonable, and that such a conclusion may be inferred because the Tribunal dealt with the matters identified at [26] above. The Tribunal made no express finding to that effect and read fairly, the matters the Tribunal dealt with at [51] and [52] of the Decision, summarised at [26] above, concerned an assessment whether the first applicant would be at risk of or exposed to harm. These were not concerned with whether any relocation or adjustment contemplated in [51] of the Decision was reasonable in the sense of being practicable. And while I accept, as the first respondent points out, the first applicant said in her statement of 8 December 2014 that it would be "incredibly difficult for [her] to move to another area of Bangladesh, without family support or employment connections": CB102 at [75], this was not directed to the practicality of moving to Rajbari to live with and then near her father, or the practicability of living with and then near either of her elder siblings. Indeed at [48] of the Decision the Tribunal notes that it had:

... queried the applicant whether she could live with her elder brother, with whom she had indicated she is particularly close. She said he has his own family and indicated that he could not care for her for an extended period, commenting that she left Bangladesh because he was not in a position to support her long-term.

1. This on its face appears to be one objection to the practicality of a proposition that the first applicant could live with, and then near her elder brother. The Tribunal does not explain, if it considered at all, whether the first applicant living in the short term with her elder brother was practicable, given the first applicant's evidence (noted above) which the Tribunal does not appear to have rejected. Accordingly, for the reasons earlier stated, an assessment of the reasonableness of relocation or adjustment was required. The Tribunal did not make that assessment and so erred.
2. The applicants have made good their ground of review. The Tribunal's decision will be quashed and the applicants' review application made to the Tribunal will be remitted to the second respondent to determine the application according to law. The first respondent will pay the applicants' costs fixed in the sum of $8,371.30.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.