BZK22 v Minister for Immigration and Citizenship [2026] FedCFamC2G 75

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321

Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50

1. Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59

SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. A writ of certiorari issue quashing the decision of the second respondent dated 11 May 2022.
2. A writ of mandamus issue directing the second respondent to determine the application for review according to law.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors **(**r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04 of the Rules.)

1. Before this Court is an amended application filed on 16 September 2022 seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 11 May 2022. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (delegate) dated 4 May 2017 to refuse to grant the applicants Protection (Permanent) (Class XA) (Subclass 866) visas (protection visas).
2. This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
3. A hearing of this matter took place at the Sydney Registry of the Court on 8 October 2025. The applicant was represented by Mr Douglas McDonald-Norman of Counsel and Ms H Wilcox of Counsel instructed by Kah Lawyers. The first respondent was represented by Mr Andrew Keevers of Counsel instructed by Sparke Helmore Lawyers.
4. The applicants claim that there is jurisdictional error in the Tribunal Decision. The key issue for determination by this Court is whether the Tribunal failed to consider cogent evidence, and if so whether this amounted to a material jurisdictional error.
5. For the following reasons I consider that the Tribunal's decision is attended by jurisdictional error. Writs will therefore issue, quashing the decision and requiring that the matter be determined according to law.

1. The three applicants are from Dhaka, Bangladesh. They are a husband, wife and their daughter (Court Book (CB) 32, 95, 100 and 105). They arrived in Australia on 12 November 2016 on visitor visas (CB 28, 51 and 76).
2. On 25 November 2016, the applicants applied to the Department of Immigration and Border Protection (the Department) for protection visas (CB 6-113). Their application was accompanied by a statement of the first applicant dated 25 November 2016 (CB 108-113) setting out their claims. They claimed persecution in Bangladesh for reasons of their Christian religion.
3. On 4 May 2017, the delegate refused to grant the protection visas. The delegate was not satisfied that the applicants met the visa criteria in the Act (CB 160 -169).
4. On 12 May 2017, the applicants applied to the Tribunal for review of the delegate's decision (CB 176-178).
5. On 15 May 2017, the Tribunal acknowledged the application by way of email to their legal representative. In the acknowledgement letter, the Tribunal invited the applicants to provide material and written arguments for the Tribunal to consider (CB 180-182).
6. On 28 June 2021, the Tribunal wrote to the applicants' legal representative to advise that the matter was being prepared for allocation to a Tribunal Member, inviting any additional evidence and requesting that a pre-hearing information form be completed (CB 184).
7. On 5 July 2021, the applicants' legal representative completed the pre-hearing information form (CB 185-190).
8. The Tribunal held three hearings in the matter.
9. On 2 August 2021, the applicants were invited to a hearing before the Tribunal scheduled on 23 August 2021(CB 194-196).
10. On 2 August 2021, the applicants' legal representative requested an adjournment (CB 197), which was granted (CB 199-200) until 22 November 2021.
11. On 15 November 2021, the applicants' legal representative provided the Tribunal with reports from a psychologist dated 2018 and 2021 (CB 219-233).
12. On 15 November 2021, the applicants' legal representative provided the Tribunal with written submissions (CB 238-247).
13. A Tribunal hearing was held on 22 November 2021. The first and second applicants attended the hearing assisted by their legal representative and a Bengali interpreter. The hearing was adjourned to another day after 3 hours and 40 minutes (CB 315-317). (A transcript of this hearing is annexed to the Affidavit of Gillian Hawkins deposed on 8 June 2022 read in Court and referred to as T1 in this judgment).
14. A further hearing scheduled on 3 December 2021 was adjourned due to the COVID-19 pandemic (CB 327-328). The hearing was rescheduled to 14 December 2021 (CB 329-332).
15. The first and second applicant appeared at the second Tribunal hearing, assisted by their legal representative and a Bengali interpreter (CB 337-339). (A transcript of this hearing is annexed to the Affidavit of Gillian Hawkins deposed on 8 June 2022 read in Court and referred to as T2 in this judgment).
16. The hearing, by video, was adjourned to 19 January 2022 after 1 hour and 7 minutes (CB 339 - 355). (A transcript of this hearing is annexed to the Affidavit of Gillian Hawkins deposed on 8 June 2022 read in Court and referred to as T3 in this judgment).
17. On 27 January 2022, the applicants' legal representative requested that the Tribunal advise as to the last date to provide post-hearing submissions and documents (CB 356). On the following day, the Tribunal confirmed that the date would be 9 February 2022. In the email, the Tribunal also provided information on a number of topics for comment (CB 357).
18. On 9 February 2022, the applicants' legal representative requested an extension to provide a response and submissions to the Tribunal (CB 359), which was granted by the Tribunal on the same day the request was received, until 11 February 2022 (CB 362). In the notifying letter, the Tribunal drew the applicants' legal representative to further information obtained from the 2019 Department of Foreign Affairs and Trade (DFAT) Country Information Report.
19. The applicants provided the Tribunal with post-hearing submissions addressing each of the seven issues raised by the Tribunal in their emails dated 9 February 2022 and 11 February 2022 (CB 364-371). Attached to these submissions were a number of supporting documents including supporting letters from members of Life for Bangladesh, reports from Open Doors International dated December 2020 and other news articles reporting on attacks on Christian individuals and churches and Islamic militancy in Bangladesh (CB 372-445).
20. On 11 May 2022, the Tribunal affirmed the Department's decision not to grant the applicants the visas (CB 448) and notified the applicants by way of their migration agent on the same day (CB 447).

1. In the Tribunal record of decision, the Tribunal identified the visa under review and the relevant law (TD [3-8]).
2. The Tribunal considered the first applicant's claims for protection. It recorded that he feared returning to Bangladesh for reasons of (TD [17- 18]):
   • His religious beliefs, practices and activities as a Baptist Christian.
   • His commitment to promoting his religion and spreading the news about Jesus Christ to Christians and non-Christians.
   • His association with a religious association which engaged in promoting Christianity, the Bangladesh Rural Youth Fellowship Centre (BRYFC).
   • His political opinions which would be considered as opposing parties such as the Jamaat-e-Islami (JI), which promoted Islam as a state religion.
   • His membership of the particular social group of Baptist Christians promoting and spreading their religion to Christians and non-Christians.
3. The Tribunal recorded that the first applicant claimed that he had been attacked and threatened by the JI in 2016, and that they had attempted to abduct his daughter (the third applicant). The Tribunal recorded that he believed he had been targeted by this group for his involvement with BRYFC and his activities in discussing Christianity with Muslims. It was recorded that he claimed that he would face harm if he returned to Bangladesh because he would continue to engage in such activities and the Bangladesh authorities would refuse him protection because of his religion (TD [18-19]).
4. The Tribunal summarised country information in relation to the claims (TD [20-53]).
5. The Tribunal found that the applicants were not truthful or credible witnesses. The Tribunal found that they provided confused, vague and unpersuasive evidence (TD [54]). The findings were as follows:
   • Life in Barisal prior to 2000: The Tribunal noted that the first applicant had been born into a Baptist family in Barisal (TD [56]). The Tribunal accepted that the applicant had attended church and participated in the YMCA and other Christian groups and activities prior to moving to Dhaka in 2000. The Tribunal did not accept that the first applicant's family had been actively involved in encouraging non-Christians in Barisal to convert to Christianity (TD [60]). The Tribunal accepted that the first applicant's family may have experienced some occasional minor issues because of their religion prior to 2000, however the Tribunal did not accept that they faced insults and harassment from Islamic extremists on many occasions during that time (TD [61]). The Tribunal found that the first applicant had sought to distort the nature of his family's religious activities and the problems they faced as a result (TD [62]).
   • Employment in Dhaka: The Tribunal did not accept that the first applicant had faced any problems in his employment due to his religion as claimed in his initial visa application (TD [67] and [128]). The Tribunal recorded that the first applicant had failed to raise the issue of employment at the hearing and when asked about it he had provided evidence indicating that he had faced only minor issues during his employment which pre-dated his promotion (TD [67]).
   • Religious activities from 2000 to 2011: The Tribunal accepted that the first applicant attended church in Kallyanpur during the time he resided in Dhaka and that he attended church in Barisal when he visited his family (TD [70-71]). The Tribunal accepted that he may have been involved in the YMCA before 2000 (TD [72]).
   • Involvement in BRYFC: The Tribunal recorded that Mr Sarkar had provided evidence about the first applicant's involvement with BRYFC at the hearing (TD [75]). The Tribunal found that Mr Sarkar's evidence about how the first applicant came to be involved with the BRYFC provided a strong indication that neither he nor the first applicant were honest or reliable witnesses (TD [79]).
   • The Tribunal noted that there were a significant number of Christian groups in Dhaka, including groups associated with the Baptist church, and that the BRYFC had a presence in Barisal at the time the first applicant was volunteering in Nabagram (TD [85-86]). The Tribunal was not satisfied that the first applicant had chosen to work in Nabagram because there were no appropriate opportunities in or near Barisal (TD [88]).
   • The Tribunal did not accept that the first applicant worked as a volunteer for the BRYFC during the period claimed (TD [128]).
   • Activities in Nabagram: The Tribunal found that the first applicant's evidence indicated that he had not provided an honest or accurate account of his activities in Nabagram between 2011 and 2016 (TD [103]). The Tribunal noted that, in particular, the first applicant's claim that he was the only member of the group who spoke to Muslims about Christianity was lacking in credibility (TD [104]).
   • Problems faced by the first applicant and his family in 2016: The Tribunal did not accept that the evidence established that Christians involved in development or social work activities in areas to the south of Dhaka were at risk of harm from members of the JI or Islamic extremists (TD [112]). The Tribunal did not accept that talking to Muslims was the main focus of the first applicant's work or that he was the only member of the BRYFC to do so (TD [113]). The Tribunal did not accept that the first applicant had been attacked or threatened by members of the JI or that the JI had attempted to abduct his daughter in 2016 (TD [114]).
   • Religious activities in Australia and on return to Bangladesh: The Tribunal did not accept that the first applicant would be involved with BRYFC if he returned to Bangladesh (TD [121]). The Tribunal did not accept that the first applicant's involvement with his church in Australia suggested he had a deep commitment to proselytise to people who did not share his faith (TD [125]). The Tribunal did not accept that the applicant would engage in proselytising to Muslims in Bangladesh if he returned (TD [126] and [128]).
6. The Tribunal was not satisfied that any of the applicants were persons in respect of whom Australia owed protection obligations under the Act (TD [145-146] and [164]).
7. On 11 May 2022, the Tribunal affirmed the decision of the delegate not to grant the applicants the protection visas (TD [165]).

1. The applicants applied to this Court for judicial review in an application filed on 8 June 2022. An amended application was filed on 16 September 2022. The application remained in the central migration docket for some time and more recently was docketed to me. The matter was listed for hearing on 8 October 2025.
2. The grounds for judicial review are set out in the amended application. The applicants seek orders that the Tribunal Decision be quashed and that the decision be remitted to the Tribunal for reconsideration.
3. Mr McDonald-Norman of Counsel and Ms H Wilcox of Counsel instructed by Kah Lawyers appeared for the applicants at the hearing on 8 October 2025. Mr Keevers of Counsel appeared for the respondents instructed by Sparke Helmore Lawyers.
4. The following documents were before the Court:
   • The amended application filed 16 September 2022.
   • An Affidavit of the applicant deposed on 6 June 2022 annexing the Tribunal Decision (Applicant's Affidavit).
   • An Affidavit of Gillian Hawkins deposed on 8 June 2022 attaching transcripts of the hearings on 22 November 2021 (referenced as T1), 14 December 2021 (referenced as T2) and 19 January 2022 (referenced as T3).
   • A Court Book (numbering 481 pages and marked as Exhibit 1R) filed 29 August 2022.
   • Written submissions of the applicants filed 16 September 2025.
   • Written submissions of the first respondent filed on 30 September 2025.
   • Written submissions in reply of the applicants filed 7 October 2025.
5. The affidavits were read in court.
6. An order was made in Court appointing the first applicant as litigation guardian for the third applicant.

CONSIDERATION - WAS THERE JURISDICTIONAL ERROR IN THE TRIBUNAL DECISION?

1. Section 476 of the Act provides that this Court has the same original jurisdiction as the High Court. The High Court, under s 75(v) of the Constitution, has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
2. A privative clause as defined at s 474 of the Act is final and not amenable to judicial review. The Court can however grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
3. The role of judicial review was explained in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) per Allsop CJ, Besanko and O'Callaghan JJ at [17] as follows:

...an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom of the decision, nor does it remake the decision.

1. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) the plurality of the High Court commented on some of the forms of jurisdictional error, noting that error can refer to breach of an express or implied condition of a statutory conferral of authority at [3] (footnotes omitted):

Because an express or implied condition of a statutory conferral of decision-making can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed.. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

1. The Tribunal was required to consider whether the applicants met the legislative criteria for a Protection (Permanent) (Class XA) (Subclass 866) visa.
2. Section 29(1) of the Act gives the Minister or its delegate power to grant a non-citizen a visa to travel to and enter or remain in Australia. The Migration Regulations 1994 (Cth) (Regulations) prescribe the criteria for classes of visas: s 31(1) and s 31(3) of the Act. A non-citizen must apply for a visa of a particular class: s 45 of the Act.
3. The Minister or its delegate considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Act are met. This includes criteria prescribed by the Act or Regulations: s 65(1)(a)(ii) of the Act.
4. The criteria for the visa applied for by the applicants are set out in Subsections 36(2)(a) and 36(2)(aa) of the Act. The applicant must be:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

The ground for review advanced by the applicants

1. In the amended application filed on 18 September 2025, the applicants contended that:

The Administrative Appeals Tribunal (Tribunal)'s decision (Decision) was affected by jurisdictional error because it failed to give real, genuine and proper consideration to relevant evidence or claims, and/or because it materially relied on findings which were illogical, irrational or unreasonable.

1. Particulars of the ground were provided as follows:

a. In the Decision:

1. the Tribunal noted that, in post-hearing submissions, 'the [First Applicant] said that he had always wanted to work with rural youth and to be involved in evangelising': Decision at [89]; and

2. the Tribunal found that the First Applicant had failed to mention his desire to work with rural youth 'until after a hearing during which I expressed concern about his decision to work in a town where he had no previous connection and which was located a long way from his home': Decision at [90].

3. Contrary to the Tribunal's finding in the Decision at [90], the First Applicant mentioned his desire to work with rural youth at several points during his hearing before the Tribunal, and did not fail to mention that desire until 'after' the hearing: 22 November 2021 Transcript at p 40 ll 15-16; 19 January 2022 Transcript at p 7 ll 11-28.

c. In the Decision, the Tribunal:

1. did not refer to the First Applicant's evidence given at hearing regarding his desire to work with rural youth; and

2. acknowledged that the Second Applicant had mentioned the First Applicant's desire to work in a rural area during the hearing (Decision at [77]), but did not address any contradiction between this and its finding that the First Applicant had failed to mention any such desire at hearing.

d. In the premises:

1. the Tribunal failed to give real, genuine and proper consideration to relevant evidence or claims made by the First Applicant: MIAC v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]- [113];

ii. the Tribunal failed to afford procedural fairness to the Applicants;

1. the Tribunal misunderstood the Applicants' claims and evidence and hence failed to lawfully form a state of satisfaction under s 36(2)(a) and (aa); and/or

2. the Tribunal's findings at [90] (that the First Applicant had failed to mention his desire to work with rural youth until 'after' the hearing) were illogical, irrational or unreasonable: SZLGP v MIAC [2009] FCA 1470; (2009) 181 FCR 113 at [37].

3. If the Tribunal had not made that error, there is a realistic possibility that the Tribunal:

4. could have reached a different conclusion as to the credibility of the First Applicant's claims regarding his reasons for working with the Bangladesh Rural Youth Fellowship Centre;

   1. could have reached a different conclusion as to the First Applicant's credibility generally; and
   2. could have found that the Applicants satisfied s 36(2)(a) or s 36(2)(aa) of the Migration Act.

f. Consequently, the Decision was affected by jurisdictional error.

Disposition - did the Tribunal fail to consider cogent evidence?

1. At the hearing before me, Counsel for the applicants advanced two questions for consideration by the Court (Tp 12.30-47 and Tp 13.31-35):

First, did the Tribunal fail to consider or understand relevant claims or evidence raised by the applicants - or otherwise reason illogically or irrationally in relation to this evidence?

Second, if so, was this error material to the Tribunal's decision? In other words, is there a realistic possibility that if the Tribunal had not made the error, it could have reached a different outcome on the review?

1. The Minister claimed that there was no error but conceded that if error was found by the Court, it was material.

The relevant Tribunal findings (Tribunal Decision [90])

1. The Tribunal considered the applicant's involvement with the youth organisation, BRYFC at [73] until [104] of the Tribunal Decision.
2. At [89] of the Tribunal Decision, the Tribunal recorded that, in post-hearing submissions, the first applicant said:

'that he had always wanted to work with rural youth and to be involved in evangelising, and the BRYFC offered these opportunities in Nabagram, but not in Dhaka and Barisal, which did not do evangelising work'.

1. At [90] of the Tribunal Decision, the Tribunal said:

'It is plausible that someone who wanted to work for rural youth would choose to work in Nabagram, rather than Dhaka or Barisal'. However, the applicant's failure to mention this until after a hearing during which I expressed concern about his decision to work in a town where he had no previous connection and which was located a long way from his home suggests that this may have been an attempt to overcome problems with his earlier evidence rather than an honest explanation of his choice'.

Interpretation of the relevant Tribunal findings

1. Counsel for the applicants and Minister interpreted the 'failure to mention this' in [90], set out in the preceding paragraph, in different ways.
2. Counsel for the applicants claimed that the Tribunal was referring to the first applicant's failure to mention a desire to work with rural youth, until after a hearing during which the Tribunal expressed concern (Tp 9.26-28).
3. Counsel for the Minister submitted that read in context, the Tribunal's reasons at [90] were not concerned broadly with the question of whether the first applicant had a desire to undertake volunteer youth work in a regional area. The Minister submitted that the relevant findings were directed to the issue of whether the first applicant had mentioned (prior to the Tribunal raising it with him) a desire that he had always held, to work with rural youth as a reason for undertaking work in Nabagram, rather than Dhaka or Barisal ([4] of the Minister's Submissions).
4. After distilling the contrary views, it is apparent that the approach of the applicants and Minister diverged in a number of ways. Firstly, whether the Tribunal was referring, at [90] when it used the word 'this', to the first applicant's desire to work with rural youth, or whether the Tribunal was referring to the desire to work with youth as a reason for working in Nabagram. Secondly, whether the Tribunal was referring to the first applicant always wanting to work in rural areas or whether the Tribunal was referring to him wanting to work in rural areas. Thirdly, whether the Tribunal was referring to the absence of evidence about these matters until after the hearing (the applicant's view), or the absence of evidence until after the matters were raised by the Tribunal Member (the Minister's view).
5. I will assess these arguments in sequence.
6. The first issue is the central one - what did the Tribunal mean when it referred in [90] to a 'failure to mention this'?
7. As touched on earlier, the preceding discussion to [90] concerned why the applicant chose to volunteer in Nabagram (TD [82 - 89]) rather than Barisal or Dhaka. In fact, this part of the Tribunal Decision was subsumed under a subheading, 'the applicant's decision to volunteer for the BRYFC in Nabagram'.
8. Notwithstanding that the deliberation in [89] and [90] followed discussion about the choice to volunteer in Nabagram, a plain reading of these paragraphs of the Tribunal Decision is that when the Tribunal said 'the applicant's failure to mention this', the Tribunal was referring, when it used the demonstrative 'this', to the desire of the first applicant to work with rural youth. I have read [90] in this way for the following reasons:
   • In [89] reference is made to the applicant saying that he always wanted to work with rural youth. In [90] the Tribunal picks up on this, stating that it was plausible someone who wanted to work for rural youth would have chosen to work in Nabagram rather than Dhaka or Barisal. In this first sentence, the Tribunal Member has put her mind to what someone who wanted to work with rural youth, (as mentioned in the preceding sentence in [89]), would want to do. She then goes on to use the demonstrative 'this' in the following sentence 'however the applicant's failure to mention this.' Demonstratives are used in language as pronouns when associated with a proximate subject. The most proximate subject is found in the preceding sentence, as is common with the use of the word 'this', which is 'someone who wanted to work for rural youth'.
   • In [89] reference is made to the first applicant's desire to work with rural youth, as well as his desire 'to be involved in evangelising, and that the BRYFC offered these opportunities in Nabagram, but not in Dhaka or Barisal, which did not do evangelising work'. When the Tribunal then moves on to [90], the Tribunal does not refer to evangelical work or the opportunities BRYFC offered in Nabagram, only focusing on the desire to work with rural youth. It appears therefore, that this was the issue at the forefront of the Tribunal Member's mind.
9. The second issue in contention was whether the reference in [90] to matters not raised by the first applicant until after the hearing, concerned the applicant's claim in post-hearing submissions that he had 'always' wanted to work for rural youth. Counsel for the Minister contended that the word 'always' in [89] of the Tribunal Decision was important because it reflected a long-term intention and the question was therefore whether he had always had this intention. It was submitted that the Tribunal's characterisation of the first applicant's post-hearing submission at [89] was correct - that was the first occasion in which the first applicant had stated that he had always wanted to work with rural youth ([11] of the Minister's Submissions).
10. In my view, in [90] the Tribunal was referring to the applicant's desire to work with rural youth generally, for the reasons set out in the preceding paragraph. There was no emphasis given to the word 'always' by the Tribunal in [90] and in my view, there is no significance in it.
11. The third issue was whether the Tribunal questioned the applicant's evidence in [90] because the first applicant did not mention the pertinent evidence until after concerns were raised with him, or until after the hearing (when concerns were raised). It was contended by Counsel for the Minister that the Tribunal's concern was that the applicant failed to mention this until after the Tribunal had expressed its concerns to him ([12] of the Minister's Submissions). The contrary view, from Counsel for the applicants, was that the Tribunal had concerns that the views of the first applicant were only expressed after the hearing, in post hearing submissions (Tp 9.23-47).
12. A plain reading of the ordinary words of the Tribunal Decision answers this question. In [90] the Tribunal states, 'the applicant's failure to mention this until after a hearing during which I expressed concern'. Clearly the Tribunal means 'after the hearing'.

The applicant's evidence about wanting to work with rural youth.

1. The first applicant referred to a desire to work in regional areas three times in the Tribunal hearings (Applicant's Affidavit T1p 40.15-16, T3p 7.16 -7.19 and 7.26 -28).

1. At the first Tribunal hearing, the Tribunal asked the applicant when he last saw the witness Mr Sarkar. There was some discussion about this. The Tribunal asked why he met Mr Sarkar (Applicant's Affidavit T1p 39. 29-40.49).
2. At T1 p 40.15-16 the applicant said:

I want to work in the rural area so if I can work with his organisation, so that is just..meeting that we had

1. At T1p 6.40-.46, the applicant mentioned Mr Sarkar's office in Nabagram.

Reference two - (Applicant's Affidavit T3p 7.17 -7.19)

1. At the third Tribunal hearing, the Tribunal put to the applicant that he had said that he had worked for the BYRFC in Nabagram because there were no opportunities to work with youth or his faith in Dhaka or Barisan (Applicant's Affidavit T3p 6.49 -7.1). The Tribunal Member said that this did not appear to be correct because it appeared that BYRFC had a presence in both Dhaka and Barisal and there were other youth groups that he could have been involved in (Applicant's Affidavit T3p 7.2-4). The Tribunal Member said that she had difficulty understanding why he would have chosen to work in Nabagram where he had no connections rather than in Dhaka where he lived or in Barisal, where his parents lived (Applicant's Affidavit T3p 7.5-8).
2. The applicant responded that Nabagram was in-between Dhaka and Barisal, and BYRFC had their headquarters there (Applicant's Affidavit T1p 10.15-16).
3. The applicant then said at (Applicant's Affidavit T3p 7.16 -7.19):

There was not much opportunity work in Dhaka,.. the situation was.. in rural area, so where I can do my duties of my work in Dhaka, because in the rural area, youth - youth gathering is much more convenient for my work.

Reference three - (Applicant's Affidavit T3p 7.26 - 7.28)

1. At (Applicant's Affidavit T3p 7.26 -28) the applicant said:

And also it was my intention to work in rural area so that I can work with youth the way I want to.. and that's why I - that was my choice, to pick up that area, that rural area.

Second applicant's reference to the first applicant wanting to work in a rural area

1. At the first Tribunal hearing, the second applicant was asked by the Tribunal if she knew why her husband went to work at Nabagram, not in Dhaka or Barisal where his parents were (Applicant's Affidavit T1p 37.15- 16).
2. At (Applicant's Affidavit T1p 37.18- 19) she said:

The headquarters were at Nabagram at that time, and this was the rural like organisation and Nabagram is in rural area, so he was there.

Post-hearing submissions dated 10 February 2022

1. In the post-hearing submissions made a few weeks after the third Tribunal hearing, the first applicant provided a statement 'addressing the concerns of the Tribunal' (CB 364-371). He identified as one of the Tribunal's concerns that 'you said you have worked for BRYFC Nabagram because there is no opportunity for you to work towards your faith in Barisal or Dhaka. However, it does not appear to be correct' (CB 365). The Tribunal then referred to the presence of BRYFC in those cities as well as other programs.
2. The applicant said (CB 365):

I always intend to work to spread God's word with young people and in rural area. It should be noted that my Grandfather and family member used to do work in rural area as well.

1. He went on to explain (CB 365) how he got the opportunity to work as a volunteer in Nabagram and how he was interested in working with vulnerable persons and due to that:

I worked in Nabagram which is not an urban area.

1. I am satisfied that evidence was adduced on the first day of the Tribunal hearing that the first applicant wanted to work in a rural area (Applicant's Affidavit T1p 37.15-19) and (Applicant's Affidavit T1p 40.15-16).
2. I am satisfied that at the third Tribunal hearing the first applicant also gave evidence of wanting to work with rural youth (Applicant's Affidavit T3p 7.17 -7.19 and T3p 7.24 - 7.28).
3. It was therefore incorrect for the Tribunal to say at [90] that the first applicant failed to mention 'this' (which as found earlier in this judgment, referred to his desire to work with rural youth) until after the hearing. The first applicant mentioned his desire to work in a rural area with youth at the first and third Tribunal hearings. Furthermore, his desire to work in a rural area was mentioned by the second applicant.
4. It was submitted by Counsel for the applicants that the error could be characterised in several ways, which were not mutually exclusive: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Tp 12.30-33).
5. I am satisfied that in respect of the first applicant's evidence the error can be characterised as a failure to consider or engage with the evidence and thereby provide procedural fairness. I am satisfied in relation to the second applicant's evidence that there was a failure by the Tribunal to intellectually engage with the evidence.
6. Section 430 of the Act required the Tribunal to set out findings on questions and fact it considered to be material, together with the evidence and material on which this was based. Generally, a court considering a challenge to a Tribunal's decision can infer that matters not mentioned were not considered relevant to the review: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
7. In the matter before me, evidence about the first applicant's desire to work in rural areas was clearly relevant to the review, as in the Tribunal Decision the Tribunal considered the reasons for working in Nabagram and his reference in post-hearing submissions to working with rural youth. However, the evidence from the first and third hearings was not referred to in the Tribunal Decision.
8. While a decision-maker is not required to reference every piece of evidence before it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (Applicant WAEE) at [46], the Tribunal must take account of cogent evidence providing substantial support to the applicant's case: SZRKT at [112]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13]. The Tribunal must reconsider the merits of the decision under review, 'in light of the information, evidence and arguments which are relevant to the application, and which are provided to it or which it obtains for itself': Applicant WAEE at [44].
9. A failure to consider evidence may amount to jurisdictional error where it is of central importance to a claim being advanced.
10. In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 (SZSRS) the Full Federal Court (Katzmann, Griffiths and Wigney JJ) found that it was open for the trial judge to infer that a letter from a reverend was not considered by the Tribunal (SZSRS at [39]). The letter supported the respondent's claim that he was a Christian. At [38], the Full Court noted that the issue of whether the applicant was baptised was an important matter in considering the claim that he was a Christian. This was because the Tribunal had formed the view that baptism is very important in a Christian's life. The reverend's letter bore directly on the issue of whether the applicant had been baptised. Given the importance of the letter to the claim being advanced, at [39], the Full Court found that if the letter had been considered by the Tribunal it could readily be expected that it would have been referred to in the Tribunal's reasons.
11. The Full Court in SZSRS found at [47] that whether the failure to consider the said letter amounted to jurisdictional error turned on 'the importance of the ignored material to the Tribunal's process of decision-making'. The court found that the reverend's letter was of central importance, and therefore the trial judge did not err in finding jurisdictional error ([55] - [57]).
12. The issue before the Full Court of the Federal Court in Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 (CZBP) (Gordon, Robertson and Griffiths JJ) was whether the Tribunal fell into jurisdictional error by failing to consider an email and an Amnesty International report which supported the respondent's claim to fear unfair arrest in Iran (CZBP at [5] and [63]). The Full Court decided the Tribunal did fall into such error in this way, as the email and report comprised important evidence that was ignored in its decision-making process (CZBP at [63] and [65]). To avoid such error, the email and report would have had to have been evaluated (CZBP at [65]).
13. In Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50, Wilcox, French and Finkelstein JJ, at [11] found that there was jurisdictional error where there was lack of mention of relevant evidence:

...In finding an absence of any mention of an event that would support the male respondent's claim, the Tribunal ignored this statement. Whether or not the reported event occurred, the cited passage was certainly a mention of an event that, if it happened, was supportive of the male respondent's claimed fear of persecution on account of his Jewishness. Moreover, if it happened, it was indicative of an attitude that would support that claim.

1. In the case before me, I am satisfied that the omitted evidence was central to the decision-making process. At [90], the Tribunal acknowledges that it is plausible that someone who wanted to work for rural youth would have chosen to work in Nabagram. If the Tribunal had considered the evidence the first applicant had adduced of wanting to work with rural youth, it is perceivable that the Tribunal would have accepted as credible the choice of Nabagram and accepted that he worked for BRYFC in Nabagram. In turn this could also have impacted on other findings.
2. I am satisfied further that the Tribunal failed to actively intellectually engage with the second applicant's evidence when asked by the Tribunal if she knew why her husband went to work at Nabagram (Applicant's Affidavit 37.10) and she said 'the headquarters were at Nabagram at that time, and this was the rural like organisation and Nabagram is in rural area, so he was there' (Applicant's Affidavit 37.18-19).
3. The Tribunal did acknowledge that the second applicant had said during the hearing that the first applicant had wanted to work in a rural area (TD [77]):

...that she understood that he had worked in Nabagram because the BRYFC headquarters were located that, and because he wanted to work in a rural area

1. However, as submitted by Counsel for the applicants, at no stage did the Tribunal record or acknowledge the first applicant's consistent evidence about this (Tp 9.38-42). Mr McDonald- Norman submitted that in the reasoning at [90] the Tribunal did not consider the evidence of the second applicant or display any consciousness of the potential relevance of this evidence (Tp 9.42-45).
2. I accept this reasoning. I note that the Tribunal mentioned the second applicant's evidence (TD [77]). I accept therefore that the Tribunal considered the evidence. However, in light of the findings about the first applicant's evidence of wanting to work with rural youth, I do not accept that the Tribunal actively intellectually engaged with this evidence. The evidence of the second applicant was unprompted, in the sense that it arose during discussions about Mr Sarkar, and it was clearly relevant to the issue of why the applicant worked in Nabagram. The Tribunal did not refer to the evidence again in the context of the evidence about rural youth in [90], although making an adverse finding that the first applicant did not provide evidence about wanting to work in a rural area until after the hearing. At TD [81], the Tribunal said that the second applicant's evidence had been considered and given little weight, but this was in relation to reaching a conclusion about the interactions with Mr Sarkar (TD [80]), rather than in relation to the issue of working with rural youth.
3. A finding that the decision-maker has not engaged in an active intellectual process will not be lightly made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 per Griffiths, White and Bromwich JJ at [48]. Their Honours at [47] found that in determining whether a decision-maker has engaged in an active intellectual process a court must:

...conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case.

...

1. In my view, while the Tribunal did conduct an evaluation, it did not take into consideration the available evidence and reasonable inferences which pertained to the question of why the first applicant chose to work in Nabagram, an issue which was central to the credibility findings.
2. I am satisfied that jurisdictional error is established in that the Tribunal failed to take into consideration, or failed to actively intellectually engage with, cogent evidence, which bore directly on central issues in contention.

1. The Minister conceded that were I to accept the applicant's construction of the Tribunal Decision, then there would be material jurisdictional error (Tp 14.37-43).
2. In LPDT, a key authority on the issue of materiality, the applicant's visa had been cancelled following criminal convictions. The Tribunal affirmed the decision of the Department to cancel the visa. The High Court found that the Tribunal's decision was attended by jurisdictional error in that it failed to comply with the relevant direction. The error was found to be material because the decision made could realistically have been different had there been no error in the assessment by the Tribunal of the relevant considerations. The High Court in that case held at [36] that:

It would involve improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning in these respects. It follows that there is a possibility, not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred. The threshold of materiality was met. None of the facts before the Court provided a basis to consider that the outcome would inevitably have been the same had the error not been made. The error was jurisdictional. The curial relief sought by the appellant should be granted.

1. I accept that in the matter before me the Tribunal's findings were cumulative - see [54] of the Tribunal Decision.
2. The Tribunal accepted that:
   • The first applicant was a Baptist (TD [60].
   • He attended church and participated in the YMCA and other Christian groups and activities in Barisal prior to moving to Dhaka (TD [60]).
   • His family founded a group called Sebok Somity to bring people of different faiths together (TD [60]).
   • The first applicant and his family may have faced some minor issues occasionally because of religion prior to 2000 (TD [61]).
   • He attended church in Kallyanpur while residing in Dhaka from 2000 to 2011 (TD [70]).
   • He attended church in Barisal when visiting his family (TD [71]).
   • Mr Sarkar had a long history with BYFRC (TD [116]).
   • The first applicant may participate in social welfare activities for the church or other Christian organisations which may involve some contact with Muslims if he returned (TD [126]).
3. The Tribunal found that there were inconsistencies in the evidence (TD [54]) and some claims were implausible and at odds with independent evidence (TD [54]). The Tribunal was not satisfied that:
   • The first applicant or his daughter were attacked in 2016 or that they fled Bangladesh to escape extremists (TD [14]).
   • The applicants were truthful or credible witnesses - much of the evidence was confused, vague and unpersuasive (TD [54]).
   • The first applicant and his family were involved in encouraging non-Christians to convert (TD [60]).
   • The first applicant and his family faced insults and harassment from Islamic extremists on many occasions prior to 2000 (TD [61]).
   • The first applicant received half the salary of others or was forced to work overtime, or faced discrimination from colleagues (TD [67]).
   • The first applicant provided an honest or accurate account of his involvement with the BRYFC in Nabagram (TD [73]).
   • The first applicant was involved with BRYFC (TD [129]).
   • The first applicant was the face of BRYFC or was the only member to speak to Muslims (TD [104]).
   • Members of JI were so incensed by the applicant's occasional involvement in BRYFC activities that they pursued him to Barisal in July 2016 and then to Dhaka in October 2016 some two months after he ceased his activities (TD [114]).
   • He was attacked or there was an attempt to kidnap his daughter (TD [114]).
   • Mr Sarkar was a reliable witness (TD [116]).
   • That the first applicant would proselytise if he returned. (TD [126]).
4. At [92] of the Tribunal Decision, the Tribunal did not accept that the applicant decided to volunteer for the BRYFC in Nabagram because there were no volunteer opportunities in Barisal or Dhaka. The Tribunal found that his 'failure to provide a reasonably coherent and convincing explanation for his decision and instead resort to claims which I find lack credibility' was 'another indication that he has not provided an honest account of his involvement with the BRYFC'.
5. I am satisfied that the decision could have been different if the omitted evidence had been taken into consideration. In Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309 at [82] the court found that in the circumstances of that case 'it cannot be said that the weighing exercise would have produced the same outcome if the Tribunal had not taken into account its illogical and erroneous findings of fact'. In Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [14], Gleeson CJ observed that:

'Decision-makers commonly express their reasons sequentially, but that does not mean that they decide each factual issue in isolation from the others'.

1. Similarly, in this case, the relevant factors leading to a negative credibility finding appeared to be inter-related, for example that the first applicant did not provide an honest or accurate account of his involvement with the BRYFC in Nabagram and that he was involved with BRYFC. The weighing exercise in the matter could have been different had the relevant evidence been taken into account.
2. I am satisfied that the various weighing factors could not be separated in the decision-making process. As Lee J observed in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 (SZTFQ) at [44] that:

it is not realistic to put the various aspect of the ...evidence into hermetically sealed boxes

...

1. I am satisfied that if the Tribunal had considered the relevant evidence, it may have accepted that the first applicant had a genuine reason to work in Nabagram, which in turn may have led the Tribunal to accept other evidence as credible. As observed by Thawley J in AFP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 375 (AFP20) at [23]:

...once a view is taken that a witness is unreliable in one respect, it can and often does affect, consciously or unconsciously, the assessment of the witness's remaining evidence, whether that evidence was given before or after the supposedly untruthful evidence'.

...

1. In AFP20, his Honour Justice Thawley observed that the outcome may have been different had it not been for the error. The Tribunal had considered a number of identified inconsistencies, which taken together had the potential to affect the appellant's reliability as a witness (TD [54] and [79]).
2. Similar observations about credibility findings were made in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 (NAFF) at [81] per Kirby J:

..decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light.

1. The concept of 're-visiting' is crucial, as decisions are broadly a collation of various findings. In the case before me, the Tribunal found that much of the first applicant's evidence about choosing to volunteer in Nabagram rather than Dhaka or Barisal was unconvincing (TD [83]). The Tribunal did not accept that he decided to volunteer for the BRYFC in Nabagram because there were no appropriate volunteer opportunities in Barisal or Dhaka (TD [92]). The Tribunal found his evidence about working for BRYFC to be confused, sometimes contradictory and generally unpersuasive (TD [103]).
2. If the Tribunal had considered the relevant evidence about rural youth, then the Tribunal could have found that his evidence about why he chose to work in Nabagram was credible. In turn, this could have consciously or subconsciously affected the remainder of the evidence, particularly as the Tribunal had accepted other aspects of the evidence, as set out earlier. When re-visiting the other evidence, the Tribunal could have looked at that evidence in a new light (NAFF [81]). Further, as pointed out by Counsel for the applicant, some issues were relatively minor and could be explained by other factors (TD [104]) (Tp 7.43-45) and the Tribunal could have given them less weight if accepting the Nabagram evidence. As Lee J, said in SZTFQ at [45]:

To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved, is to my mind, to underplay the complexity of the anatomy of decision-making.

1. I am satisfied that the jurisdictional error was material because the decision made could realistically have been different had there been no error.

1. Based on the facts and circumstances of this matter I am satisfied that the applicant has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error.
2. Accordingly, I grant relief in the form of the constitutional writs of certiorari and mandamus.
3. I will hear from the parties as to costs.

I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.