BOP17 v Minister for Immigration and Citizenship [2025] FCA 1496

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The appellant is a citizen of Malaysia whose application for a Protection (Class XA) visa was refused by a delegate of the Minister in the exercise of power under s 65 of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal affirmed that decision and, in so doing, concluded that the appellant's claims of fear of harm if she were returned to her country of origin were not credible for various reasons. Thereafter, a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissed an application for judicial review of the Tribunal's decision. The issue in this appeal is whether the primary judge was in error for failing to conclude that the Tribunal made a jurisdictional error of law on the ground that its decision was legally unreasonable because its conclusions about the credibility of the appellant's protection claims were based on misunderstandings of the evidence and (or) were illogical or irrational.

1. The appellant's notice of appeal raises one ground with particulars that, in effect, restate and repeat the corresponding ground and particulars in her originating application for judicial review filed in the Circuit Court.
2. Although the appellant had legal representation before the primary judge, in the appeal she was self-represented. At the time the appeal was called on for hearing, the appellant had not complied with orders made on 30 November 2022 requiring, amongst other things, the appellant to file written submissions in support of the appeal.
3. Given the passage of time between the orders made in November 2022 and listing the appeal in 2025, and absence of written submissions from the appellant explaining her ground of appeal, at the outset of the hearing, the appellant was provided with an explanation of the process of an appeal and judicial review. As a consequence of that explanation, the appellant confirmed, in substance, that she contends that the primary judge made an error of law in failing to accept that the Tribunal had fallen into jurisdictional error in the manner described in the applicable ground of review in her originating application. After that explanation and confirmation, the appellant was afforded an opportunity to collect her thoughts before making oral submissions. The appellant took that opportunity and then proceeded to make her oral submissions.
4. Notwithstanding the explanation of the appeal and judicial process given, the appellant's oral submissions did not advance matters substantively beyond the particulars set out in the ground of appeal and did not identify with any degree of precision any asserted error in the primary judge's reasons. The Minister's submissions, in effect, sought to support the primary judge's judgment on the basis that, for the reasons she gave, her Honour was correct to dismiss the application for judicial review.
5. Having regard to the preceding matters, the approach I have taken is to examine the Tribunal's reasons and primary judge's reasons to identify any evident error in terms consistent with the particulars in the notice of appeal. I have also considered the references to the transcript to which reference is made in the particulars and the primary judge's reasons to consider if the relevant ground of review reveals any evident error in the Tribunal's reasons consistent with that ground.

Was the conclusion that the protection claims were not credible legally unreasonable?

1. Protection visas are a class of visa which are specified by s 35A of the Act. Provision is made for criteria specific to a grant of a protection visa in s 36 of the Act which supplement the general criteria identified in s 65(1). Section 36 and Sch 2 to the Migration Regulations 1994 (Cth) set out the criteria that an applicant for a protection visa must meet. An applicant for a protection visa must satisfy one of the alternative criteria in s 36(2)(a), (aa) or (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the refugee criterion, or on other complementary protection grounds, or is a member of the same family unit as such a person and that person holds a protection visa in the same class. If satisfied of all of the relevant criteria for the grant of a visa, the Minister must grant a visa under s 65 of the Act. The Minister's power to grant (or refuse to grant) a visa under ss 29, 36 and 65 may be (and usually is) exercised by a delegate of the Minister under s 496 of the Act.
2. At the relevant time, the decision of the delegate, to refuse the appellant a protection visa, was a Part 7-reviewable decision within the meaning of that expression in s 411(1) of the Act. Subject to the Minister issuing a conclusive certificate relating to the national interest that is not presently relevant, if a valid application was made under s 412 for review of a Part 7-reviewable decision, the Tribunal was obliged to review the decision: s 414.

1. The appellant claimed in her protection visa application that she was married with no children and that her husband hit her and tortured her. Further, one day her husband suddenly disappeared and never returned and a few weeks later a group of men came to her house and threatened her because her husband had borrowed money from an illegal money lender and had disappeared without repaying the debt. The appellant claimed she experienced harm from the money lenders in Malaysia, and in addition to threatening her, they came to her house, damaged her things, and threw stones during the night that scared her. She asserted that she had asked family and friends to support her to settle the problem, but no one was willing to help her because they were angry with her for marrying her husband against their wishes. She contended that she made a police report, but the police did nothing. She further alleged that she tried to get to another state in Malaysia but the money lending people traced her. She claimed that if she returned to Malaysia anything could happen to her and that the money lenders are very dangerous and willing to do anything to get their money back. She alleged that if she returned, they will not think twice about killing her, her life is in danger; she has no one to protect her and her own husband is a danger to her. The appellant also claimed, at the hearing before the Tribunal, that she had been raped on four occasions by members of the illegal money lending group.
2. The Tribunal identified that the issues in the review were whether the appellant had a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act and, if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm. The Tribunal concluded that the decision under review should be affirmed for a number of reasons. These included that the Tribunal had serious doubts about the credibility of the appellant's claims regarding the problems she allegedly experienced in Malaysia from the people from whom her husband allegedly borrowed money. The Tribunal provided a number of reasons in support of the doubts about the appellant's credibility.
3. The appellant contends that the Tribunal's conclusions about the credibility of her claims were founded on misunderstandings of the evidence and (or) illogical or irrational reasoning.

Legal unreasonableness, illogicality and irrationality in credit findings

1. The primary judge set out the principles applicable to illogicality and irrationality in terms that were not challenged in the appeal: PJ [21]-[23]. As to illogical and irrational decision-making, the primary judge referred to and cited Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [131]- [135] (Crennan and Bell JJ) and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47], [83] (Griffiths, Perry and Bromwich JJ). For the purposes of this appeal, the following is summary of the principles to which the primary judge referred in terms that are consistent with her Honour's reasons, but with further explanation of those principles as relevant to the issues in this appeal.
2. In the grant or refusal of a protection visa under s 65 the Minister must be satisfied (or in the case of refusal, not satisfied) of a number of matters including that the applicant meets the refugee or the complementary protection criteria. The state of satisfaction (or non-satisfaction) is a precondition to the authorised exercise of power under s 65 and, as such, may be described as a 'jurisdictional fact': Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [37] (Gummow and Hayne JJ) citing Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [183] (Gummow and Hayne JJ). As Derrington J explained in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; 272 FCR 409 (at [55]-[61]), the formation of the state of satisfaction (or non-satisfaction) through an illogical or irrational process of jurisdictional fact-finding may result in jurisdictional error because the state of satisfaction (or non-satisfaction) has not been formed in accordance with the Act and, therefore, an essential precondition to the authorised exercise of the power in s 65 has not been met.
3. There is a conceptual difference between the formation of a state of satisfaction as a precondition to the exercise of power and the exercise of the power once the precondition is met: EHF17 at [57]-[61]. Where formation of a state of satisfaction is a precondition to the exercise of power, apprehensions about 'merits review' are not present because the relevant question is whether the decision-maker had jurisdiction to embark upon determination of the merits. Thus, the same degree of caution as to the scope of judicial review does not apply where the question is whether the jurisdictional threshold has been crossed: SZMDS at [37]-[38] (Gummow ACJ and Kiefel J); see, also, EHF17 at [62]-[64]. Relevantly, a subjective jurisdictional fact does not exist if it is founded upon findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [145], [147] (Gummow J); Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; 198 ALR 59 at [34]- [37], [52] (McHugh and Gummow JJ); SGLB at [38] (Gummow and Hayne JJ); SZMDS at [40] (Gummow ACJ and Kiefel J), [102]-[105], [121]-[131] (Crennan and Bell JJ).
4. The assessment of the fulfilment of a subjective jurisdictional fact involves determining whether the state of mind of the decision-maker was formed as the legislature requires and, implicitly, that means in the absence of illogical or irrational reasoning and (or) fact-finding. If the state of mind actually reached could be reached by a logical or rational person on the same material and complies with other legislative requirements, it is a state of mind that will enliven the relevant power. That will be so even though the material and other legislative requirements could result in a different outcome by a logical and rational decision-maker. But, if the actual state of mind was reached by a path of reasoning that was illogical or irrational the required state of mind will not have been obtained even if that outcome could have been reached by a logical and rational process of reasoning. In substance, the person affected by the decision has lost the opportunity to obtain a decision of the kind the legislature mandated and, instead, has been subject to a capricious or arbitrary decision that equates to a 'toss of a coin': EHF17 at [84]-[85].
5. It is also important to emphasise that not every lack of rationality or lapse of logic results in an error in subjective jurisdictional fact-finding. An illogical or irrational decision is of the same order as a decision that is 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable' in the sense that the state of satisfaction mandated by the legislature imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. 'A court should be slow, although not unwilling, to interfere in an appropriate case': SZMDS at [130]-[131] (Crennan and Bell JJ). Further, describing reasoning as irrational, unreasonable or illogical must be more than a mere emphatic way of expressing disagreement with it: Eshetu at [40] (Gleeson CJ and McHugh J). Likewise, it must mean more than that on the material before the decision-maker, the court would (or would not) have reached the required state of satisfaction: S20/2002 at [9] (Gleeson CJ).
6. As the primary judge correctly emphasised, relying on ARG15 (at [47]), 'extreme' illogicality or irrationality must be shown 'measured against the standard that it is not enough for the question of fact to be one upon which reasonable minds may come to different conclusions and against a framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal'. As to judicial review of credibility findings for jurisdictional error, the primary judge made reference to ARG15 (at [83]-[84]) and the following guide to application of the principles.

(1) While a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, that does not mean that credibility findings are not subject to judicial review.

(2) The issue of whether a credibility finding involves jurisdictional error is case specific and should not be analysed by reference to fixed categories or formulae. Nonetheless, adverse credibility findings might involve jurisdictional error on recognised grounds such as: failure to afford procedural fairness, reaching a finding without a logical or probative basis and (or) legal unreasonableness.

(3) The reasons of the decision-maker must be analysed in detail to determine whether or not there has been jurisdictional error. That analysis may require that close attention be given to the relevant parts of the reasons for decision, transcript to which reference is made and (or) other evidence upon which the findings of credit were made.

Credibility findings were rational, logical and founded on probative material

Claim concerning the appellant's husband's work and money-lender loan

1. The appellant contends that the Tribunal misunderstood the evidence and made illogical or irrational findings about credibility in the following paragraph of its reasons.
   1. The Tribunal finds aspects of [BOP17's] evidence confusing and implausible. According to [BOP17's] evidence she claimed that she last saw her husband on 31 January 2015 when he told her that he was going outstation for some work related issues. Yet, she subsequently claimed that her husband was not working at the time. However, when asked if her husband worked she claimed he was running some kind of business involving vehicle registration. The Tribunal also notes that [BOP17] claimed that she was first approached by unknown people, who she claimed looked like they belonged to a gang, on 8 February 2015 at her office, who asked her where her husband was and told her that he owed them money and as he had run away, she now had to pay what he owed them. Apart from telling her that her husband had borrowed 130,000 ringgit, these people did not tell her (nor does it appear from her evidence that she asked them) when her husband allegedly borrowed this money, whether he had paid any of the money back that he allegedly borrowed or how much he owed them, which she was now allegedly responsible for. The Tribunal finds it implausible that if [BOP17] had received a visit from people informing her that she was now responsible for paying back a debt allegedly owed by her husband, that those people would not disclose these basic details regarding the money that she now allegedly had to repay. More particularly, the Tribunal has difficulty accepting that [BOP17] herself would not seek further information from these people who appeared to be gangsters about the money that her husband allegedly borrowed. Even if [BOP17] and her husband had a lot of misunderstanding, as [BOP17] explained in response, the Tribunal finds it far-fetched that if she had been approached by these people demanding her to repay money that her husband allegedly owed, that she would not make some general enquiries about her husband's actions and instead not pay these people much attention, as she asserted during the hearing.
2. The appellant contends that the observation that her husband was working was not supported by the transcript of the hearing. The appellant also contends that the finding that it was implausible that the lenders did not give details apart from borrowing 130,000 ringgit and how to repay the money was irrational and illogical.
3. The primary judge did not accept that the Tribunal had misinterpreted the evidence recorded in the relevant parts of the transcript of the Tribunal hearing. Her Honour was of the view that the relevant parts of the transcript concerning the appellant's husband's work supported the Tribunal's summary of that evidence. Further, the Tribunal's conclusion, based on the relevant evidence, that it was implausible that the lenders had not disclosed to the appellant the basic details of the loan was not illogical or irrational: PJ [28]-[31], [36]-[38]. As to implausibility, her Honour said relevantly:
   1. [BOP17] focuses on the Tribunal's failure to refer to her evidence that the people who visited her had her Malaysian ID card and her workplace payslip. It is true that the Tribunal did not refer to this evidence at [23] of its reasons. However, the Tribunal's finding of implausibility was not in any way based on any evidence as to how the alleged money lenders were said to have found [BOP17]. Rather, the Tribunal's finding of implausibility was based on its belief that, contrary to the evidence given by [BOP17], if people had approached her claiming that she was required to pay a debt incurred by her husband, they would have told her details such as when her husband borrowed money, whether he had paid back any of the money and how much was currently owing and, if they failed to provide these details, [BOP17] would have asked for these details herself. The Tribunal's finding of implausibility was not unreasonable, illogical or irrational.
4. I discern no error in the primary judge's conclusions or reasoning. The transcript of the Tribunal hearing supports the Tribunal's summary of the evidence. The conclusions about the implausibility of the appellant's evidence concerning her husband's loan were within the range of conclusions for which there was probative material. Otherwise, the Tribunal's reasons provide intelligible justification for the conclusions reached about credibility.

Assault claims and explanation for delay making sexual assault claim

1. The appellant contends that the Tribunal's findings in the following paragraphs were irrational and illogical and (or) involved a misunderstanding of the evidence.
   1. The Tribunal also finds [BOP17's] evidence regarding her contact with these unknown people [the money lenders] and what they did to her inconsistent. Firstly, the Tribunal notes according to [BOP17's] protection visa application she claimed that these people first came to her home a few weeks after her husband suddenly disappeared and threatened her to pay and after that they started coming to her home and workplace daily and threatening her. However, [BOP17's] evidence in the hearing was that these people first came to her office on 8 February 2015 and told her that she had to pay what her husband allegedly owed them and then they came to her home two days after that. She also claimed in the hearing that during this visit to her home, she was slapped. Yet, there was nothing in [BOP17's] protection visa application suggesting that she had been physically harmed by these people.
   2. More significantly, [BOP17] also claimed in the hearing, for the first time, that she had been raped on four occasions by these people. [BOP17] claimed that she was first raped after she had reported the first visit by these people to the police. She claimed the day after she had been visited at her home, she went to a small police station to make a complaint but the police told her as this was a money matter she should negotiate with the people to settle the issue. The next day, the unknown people came to her office and one of them said how dare she make a complaint to the police. Then, when she was going home, one of them followed her and no sooner had she entered the house, the person followed her in and raped her. She claimed that she was raped a further three times after this incident. She could not tell when these incidents happened but they were between 8 February 2015 and 13 March 2015. [BOP17] claimed that with the three other incidents, they came and knocked on the door and she opened the door thinking it was her husband and they entered and raped her.
   3. As the Tribunal put to [BOP17] in the hearing, there was no mention in her protection visa application about her being physically harmed by these people during any of the alleged visits to her home, let alone being raped on a number of occasions. Instead, [BOP17] claimed that they came to her house and damaged her house things and also threw stones at midnight and scared her. The Tribunal finds, given the seriousness of these alleged incidents, that [BOP17's] failure to mention anything in respect of these events in her protection visa application and her delay in only raising this during the hearing raises serious doubts about the credibility of these claims. While [BOP17] responded that she is not fluent in English and that she had asked help from an unidentified boy to help her write her statement in English, the Tribunal does not accept [BOP17's] explanation. Firstly, the Tribunal notes that [BOP17's] protection visa application does not indicate that she received any assistance with completing her application form and it also provides that she is fluent in English, as well as Tamil and Malay. Given the Tribunal's concerns about [BOP17's] credibility generally, and the information in [BOP17's] protection visa application, which she confirmed as true and correct in the hearing, the Tribunal does not accept [BOP17] told some boy who she did not know who lived in the same caravan park as her to help her write her statement in English and because he was a stranger she did not tell him she was raped. Secondly, the Tribunal notes [BOP17's] evidence in the hearing that she applied for the protection visa after reading information about the visa from the internet. The Tribunal finds that this evidence does not suggest [BOP17] is unable to read and understand English and leads the Tribunal to not accept [BOP17's] claim that she did not know what was written in her application. Further, the Tribunal notes [BOP17's] evidence that when she got the rejection letter from the Department she realised there was some inconsistency and that what the boy had written down was different to what she had told him. Again, [BOP17's] evidence suggests that she is able to read English, consistent with the information in her protection visa application. Even accepting that someone else wrote [BOP17's] claims in her protection visa application (which the Tribunal does not accept), the Tribunal finds on the basis of her evidence, that [BOP17] can read English and it does not accept that she would have signed the form confirming the information provided was correct if it was not.
2. With respect to T [25] the appellant contends that the conclusions about inconsistency in her protection visa application and the hearing of regarding her contact with people and the omission of physical harm is irrational and illogical because there was evidence that a male person assisted her to complete the protection visa application form. The appellant also contends that the findings and reasoning process in T [26]-[27] about sexual assault was illogical and irrational. Further, the Tribunal misunderstood the appellant's explanation for not making the claim earlier; namely, because she was not fluent in English, a male person assisted her to complete and write the protection visa application, and there were cultural reasons for not telling a male stranger that she had been sexually assaulted.
3. The primary judge summarised the appellant's submissions by which she drew attention to various parts of the transcript of the Tribunal hearing and set out or summarised that evidence: PJ [42]. The primary judge expressed the view that a submission that had been made to the effect that the Tribunal should have known that the appellant did not speak English fluently was overly simplistic and did not reflect the level of detail in which the Tribunal engaged with the appellant's evidence before rejecting her explanation as to why she failed to mention certain claims in her written application: PJ [43].
4. Regarding the evidence upon which the appellant relies in support of these particulars the primary judge said:
   1. The Tribunal carefully considered [BOP17's] explanations for the inconsistencies in her written and oral evidence. In her protection visa application form, in response to a question asking [BOP17] which languages she speaks, reads or writes, [BOP17] responded that she speaks, reads and writes, in order of preference, English, Malay and Tamil. She did indicate that if she is called for an interview she would need a Tamil interpreter. She also indicated in her written application that she did not receive assistance from an interpreter or anyone else in completing the application. There is no error in the Tribunal relying on the information in [BOP17's] written protection visa application. The Tribunal's observation that [BOP17] confirmed at the commencement of the hearing that the information in her protection visa application was true and correct is supported by a reading of the transcript.
   2. The Tribunal rejected [BOP17's] explanation that a boy helped her complete the form in part based on its overall concerns about [BOP17's] credibility. However, the Tribunal also went on to consider whether, even if a person did assist [BOP17], she had provided an adequate explanation for the inconsistencies between her written and oral evidence. The Tribunal rejected any assertion that [BOP17] was unable to read and understand English. This finding was made in the context of [BOP17's] evidence that she applied for a protection visa after reading about protection visas on the internet, and that she realised upon receipt of the delegate's decision that there were inconsistencies between what she told the boy and what he had written down. Based on its finding that [BOP17] was able to read and understand English, the Tribunal did not accept that [BOP17] would have signed her protection visa application form if she did not believe it was correct.
   3. These findings were clearly open to the Tribunal on the evidence before it. Again, while a different decision-maker may have reached a different decision, it cannot be said that based on the evidence before the Tribunal, the Tribunal's finding was not open to it. The Tribunal's conclusion was also consistent with further evidence given by [BOP17] at the hearing, which was not referred to by the Tribunal in its reasons. That evidence was [BOP17's] evidence that she can understand English but it was simply hard for her to talk back in English. The Tribunal's findings about [BOP17's] English ability in the context of signing her application were focused more specifically on her ability to read English, rather than to speak English. It is implicit in the Tribunal's findings that the Tribunal is of the view that [BOP17] had sufficient reading ability in English to be able to read over her application and identify anything that was inaccurate prior to signing her application.
5. As to the allegation of sexual assault, the primary judge said:
   1. The Tribunal referred to and rejected this explanation at [27] of its reasons for the same reasons it rejected [BOP17's] explanations for the other inconsistencies in her written and oral evidence. The Tribunal also expressed concern that, given the seriousness and significance of the issues, [BOP17] would wait until the hearing to first raise the claims. The Tribunal's rejection of [BOP17's] explanations for not raising her claim to have been raped at an earlier occasion was open to it on the evidence. The Tribunal did not reject as implausible at any sort of general level the suggestion that a survivor of rape might be unwilling to discuss her rape with a stranger due to shame or cultural sensitivities. The Tribunal's findings at [27] and the surrounding paragraphs should be viewed in the context of its reasons as a whole, including the general and specific concerns about the credibility of [BOP17]. It should also be borne in mind that the Tribunal had the advantage of being able to witness [BOP17's] demeanour while she gave her evidence.
   2. It should be noted that the Tribunal rejected [BOP17's] claims to have been raped four times not only because of the lateness in raising these claims, but because it considered [BOP17's] evidence regarding these incidents to be vague and unconvincing. In this regard, the Tribunal referred to inconsistencies in [BOP17's] evidence as to whether there were neighbours around when someone allegedly followed her to her house the first time she claimed to be raped. The Tribunal also considered [BOP17's] evidence to be unconvincing insofar as she suggested that, after she had been raped the first time, she would simply open the door when these people came and knocked the next three times, without taking any precautions. These findings were open to the Tribunal on the evidence before it.
   3. There was one place in [BOP17's] written submissions where [BOP17] submitted that her evidence about whether there were neighbours around was not inconsistent, based on information about the position of her house which was not before the Tribunal. Any consideration of whether the Tribunal's findings were illogical or irrational needs to be based on the evidence that was before the Tribunal.
6. Again, I discern no error in the primary judge's conclusions about the manner in which the Tribunal addressed the evidence or its process of reasoning. There is nothing evidently illogical or irrational in the reasons and, while a different decision-maker may have come to a different conclusion about the credibility of the appellant's explanations for her not raising the sexual assault earlier, the Tribunal's rejection of that evidence was based on probative material and was within the boundaries of the decisional freedom of the administrative decision-maker.

1. The Tribunal concluded based upon its findings about credibility that the appellant was not a witness of truth and did not accept her claims for protection were credible: T [35]. As a consequence, the Tribunal found the appellant does not face a real chance of persecution if she is returned to Malaysia: T [36].
2. The Tribunal also did not accept her claims that her husband had hit and tortured her. It said:
   1. The Tribunal notes that [BOP17] claimed in her protection visa application that her husband always hit her and tortured her. In the hearing she made no claims that she was physically abused by her husband or tortured by him, although she did discuss that she had experienced difficulties in her marriage, with her husband allegedly going away for weeks at a time without telling her where he was going and when he would be back and fighting. The Tribunal observes that [BOP17] made no made claims that she feared harm from her husband if she returned to Malaysia in the hearing despite claiming in her protection visa application that her husband is a danger for her. Further, given the Tribunal's concerns regarding [BOP17's] credibility and those of her claims generally, the Tribunal does not accept that [BOP17] suffered any problems in her marriage as she claimed, including being hit always, tortured or mistreated in any other way, and that her husband is a danger for her. The Tribunal therefore does not accept that [BOP17] faces a real chance of persecution from her husband if she returns to Malaysia.
3. The appellant contends that the findings and reasoning process in the preceding paragraph in relation to the claim of her husband was also illogical and irrational and the Tribunal misunderstood the evidence. The appellant's evident complaint is that because the Tribunal did not ask her any specific questions about her claim of domestic violence she thought that the claims had been accepted and it was legally unreasonable not to ask her questions if the Tribunal was contemplating disbelieving her evidence about that claim: PJ [53]. The primary judge was not satisfied that the Tribunal acted unreasonably, or made findings that were illogical or irrational, in reaching the conclusion that the appellant would not face a real chance of serious harm from her husband in the future in circumstances in which no specific questions were asked about whether her husband would harm her in the future: PJ [54].
4. To explain the primary judge's conclusion her Honour set out and summarised the appellant's claims and evidence in detail: PJ [55]-[65]. In sum, in the appellant's protection visa application she had claimed that her husband hit her and tortured her, but that claim was made in the context of explaining that she had left her home country because of threats from the money lenders. The delegate interpreted the appellant's claim as a fear of harm from the money lenders and not a fear of domestic violence. The appellant provided no additional evidence to the Tribunal in which she claimed domestic violence or feared harm from her husband if she were to return to her home country. When asked at the hearing before the Tribunal why she feared returning to her home country she only referred to a fear related to the money lenders. When given the opportunity to give any additional reasons for her fear she did not raise any fear of harm from her husband. There were a number of exchanges between the Tribunal and the appellant's migration agent during which further opportunity was given to raise any additional bases for fear of harm and none was raised except a fear of harm from the appellant's family who did not support her marriage. The primary judge then said:
   1. When one considers the Tribunal's reasons at [37] in the context of this background, it is clear that the Tribunal's summary of [BOP17's] evidence in that paragraph is accurate. There was nothing unreasonable in the Tribunal noting [BOP17's] failure to claim to fear harm from her husband at the hearing in circumstances where [BOP17] made no claim to fear harm from her husband in the reasonably foreseeable future in her protection visa application, and in circumstances where the Tribunal gave [BOP17] multiple opportunities to tell the Tribunal about her claims for protection at the hearing. The Tribunal was not required to make [BOP17's] case for her: see Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [187].
   2. ...
   3. There was nothing illogical, irrational or unreasonable in relation to the Tribunal's finding at [37] and there is no basis for finding that the Tribunal misapprehended [BOP17's] evidence.
5. Before the primary judge (and in the appeal) the appellant relied upon the following passage from the transcript in support of her contention that the Tribunal misunderstood her evidence and acted unreasonably in not asking her questions about domestic violence because that led her to believe that her claims about that topic had been accepted.

[Agent]: Actually that she doesn't have any support from the family, and she has--

Member: What's the question?

[Agent]: Now she - actually I want to ask more about her marriage ...--

Member: No. It's not her claim, so, her claim is harm from the loan sharks. That's the harm that you fear, isn't it? Harm from loan sharks, like, the ... loan sharks? Yeah.

[BOP17]: Problem is not the money, I have problem with ...

Member: Who are after you because of the money that your husband owed - borrowed from them? Do you have any fears in relation to your marriage and it not being accepted by your family?

[BOP17]: Actually, yes, because my parents - my parents never accepted my marriage. Even someone - if go now, they're not going to support me--

Member: Are they going to harm you? Sorry.

[BOP17]: Even if someone go and - even if someone kill me in from of them, they won't feel sorry for that.

Member: Okay, but are they going to harm you, your parents?

[BOP17]: They will just hit me because they are angry and they will use the words which can harm me.

Member: But you don't live with your parents, do you? I understand you're trying to say that she's not gonna have the support of her parents because they didn't agree with the marriage, is that what you're getting--

[Agent]: Yes, certainly, and the other thing is that when they - when questioning her, that ... the last day they made the threat and the harassment on the 13th, I believe on 13th and 14th, Saturday, ...

1. It is not evident from that passage that the Tribunal considered that the applicant had made a claim for complementary protection on the ground that she feared harm from her husband or that the Tribunal had accepted that her husband had hit and tortured her in the past. Rather, this passage of the transcript suggests the member considered that the appellant's claim was about the harm from the money lenders not fear of harm arising from her husband. She was specifically asked if she had any fears in relation to her marriage and it not being accepted by her family to which she answered 'yes'. However, the reason given related to non-acceptance of her marriage not a fear of harm from her husband.
2. Although not framed in this way, the appellant's contention may be regarded as an assertion that she was not afforded procedural fairness in that the Tribunal failed to put to her that it was considering not believing her claim that her husband hit and tortured her in her protection visa application because she had not given direct evidence about that topic during the Tribunal hearing. If that were the contention, it is not accepted. The Tribunal afforded the appellant ample opportunity to advance a claim for protection based on a claim that she feared harm from her husband, but she did not do so. The Tribunal explained at T [37] that her failure to raise that claim during her evidence in the Tribunal, in effect despite the opportunity given to do so, was a reason for rejecting that claim, but a further reason was given regarding the Tribunal's concerns about the appellant's credibility more generally. Again, while it was open for the decision-maker to reach a different conclusion, the conclusions reached and the explanation for them are not illogical, irrational or lacking probative foundation. The primary judge set out all of her explanations for reaching the same conclusion at PJ [56]-[65], none of which is demonstrative of any error. Likewise, there is no error in the primary judge's conclusion that the Tribunal was not required to make the appellant's case for her: PJ [66].

1. The primary judge gave careful and detailed consideration to each of the particulars of the relevant ground of review and concluded that none of them demonstrated that the Tribunal had found that the appellant's claims lacked credibility for reasons that were illogical, irrational or lacking probative foundation. None of the particulars to the ground of appeal, which repeat the particulars of the ground of review, demonstrate that the primary judge made any error in the conclusions she reached in this regard.

1. For the forgoing reasons the appeal should be dismissed with costs.
2. The Minister has requested that costs be fixed in the sum of $5,000. I am satisfied that the costs should be fixed on a lump-sum basis in accordance with the principles explained in paragraph 4 of the Costs Practice Note (GPN-COSTS) and that $5,000 is a reasonable amount in which to fix those costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.