CCL19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1750

1. The Decision was 20 pages in length and attached an 'Attachment A' that explained the relevant law. In particular, the criteria for the visa required by s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
2. After setting out the background summarised above, the Tribunal assessed the claims for protection made by the applicant (CB 323 [8]-[50]). At [50], the Tribunal observed that:

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, an applicant's claim to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

1. The Tribunal then proceeded to assess the credibility of the applicant's evidence and claims for protection. This included new claims that were not included in the applicant's original application for the visa (CB 333 [57]). The Tribunal was not satisfied by the applicant's claims of a well-founded fear of persecution, or that there was a real risk that the applicant would suffer significant harm if he was to return to Turkey (CB 337-339 [75]-[85]). The reasons given were comprehensive.

1. On 27 May 2019, the applicant filed an application for judicial review of the Decision with the then Federal Circuit Court. The grounds of review were stated as follows:

1. The decision of the Second Respondent ("the Tribunal") was affected by jurisdictional error in that the Tribunal failed to consider relevant considerations, evidence or material.

Particulars

(a) The Tribunal failed properly to consider the explanation given for the Applicant in not applying earlier for a protection visa, including that:

"The professional advice he received was that the best way to escape the persecution, with his family, was to travel to Australia as a student. [The Applicant] states that obtaining a student visa was merely a means to an end",

and

"[the Applicant] did not knowingly delay his application for protection but has attempted to stay safe by remaining in Australia via the avenues he has been made aware of as they have arisen .... Until recently, [the Applicant] has not been aware of how his personal circumstances of being imputed as an Alevi follower and as a member of the Fethullah Gulen apply to, invoke, and ignite his sur-place claims for protection in Australia."

2. The Tribunal's decision was affected by jurisdictional error in that it erred in interpreting or applying the law.

(a) The Tribunal did not apply the correct legal test to the application as required by section 36(2)(a) and 36(2)(aa) of the Migration Act 1958, in that it did not consider whether there was a real chance that the Applicant may suffer serious or significant harm, but rather whether he "would be the subject of adverse attention", or "he would be targeted". (Tribunal's reasons, [75]; emphasis added.).

3. The Tribunal's decision was affected by jurisdictional error in that it was legal unreasonable.

(a) The Applicant refers to the Paragraph (a) of the particulars to Ground I. The Tribunal was unreasonable in saying:

"Thirdly, the applicant waited for five years before making an application for a protection visa. If he had a genuine fear of harm it would be reasonable to assume that he would have applied at the earliest opportunity, particularly given that he has had interactions with the Department and agents during that time. When the Tribunal discussed this with him, he pointed to poor advice received. It may well be the case that he received some poor advice, but he also did have interactions with the Department and other agents such that it could have been expected that he would have applied if he had a genuine fear of returning."

(Tribunal's reasons, [66])

(b) The Tribunal was unreasonable in not being satisfied that there was a real chance of the Applicant suffering serious harm or significant harm because of his association with a Gulenist school, although it noted recent serious activity by the Turkish government against the Gulenist movement when it said that:

"There have been ongoing arrests in Turkey of individuals accused of Gulenist movement, including, some foreign students studying in Turkey addition, Turkish agents have also reportedly abducted Turkish citizens, including teachers, at Gulenist linked schools abroad, conducting forcible renditions back to Turkey. Following the attempted coup in 2016 the Turkish government closed down Gulenist linked schools and universities in Turkey, and pressured various other countries to shut down such schools in their countries. The Turkish authorities are aware of and monitor Gulenist linked schools in Australia, .... In the aftermath of the attempted coup, 100,000 suspected Gulen linked academics and teachers, civil servants and other professionals were fired from their positions, with 48,000 court actions commenced. Prior to the attempted coup, there were over 1,000 Gulenist linked schools and 15 universities in Turkey, with enrolments of around 135,000 and 65,000 students respectively. As discussed with the applicant at the Tribunal hearing however, information indicates that students who had attended Gulenist schools in Turkey have been able to enrol in other schools and were not arrested or harmed, despite the crackdown on the Gulen movement. In this case, the applicant's daughter attended the school nine years ago and the applicant attended meetings at the same time. The applicant has claimed that .... the imam is a religious man who would have reported the Turkish students who attended the school to the Turkish authorities. The Tribunal accepts that imams have been used by the Turkish government to report on Turkish citizens abroad, however the association with the school was nine years ago and only for a short period. Given that there have been no repercussions for students within Turkey who have attended these schools, the Tribunal is not satisfied that the applicant would be the subject of adverse attention on the basis that his daughter attended a Gulenist school or he attended school meetings. The Tribunal is also not satisfied that he would be targeted because of living with Gulenists in 2008, given that it was so long ago and for a short time and he has not been an activist or had any deep involvement.

Finally, the Tribunal conducted country searches· but could not locate any reports to suggest that students who have attended Gulen linked schools, either in Turkey or abroad, or citizens who had attended events at Gulen linked schools overseas, were being arrested or banned by the Turkish authorities, on return to Turkey."

(Tribunal's reasons, [75]-[76]).

1. The application for judicial review was accompanied by an affidavit sworn by the applicant on 27 May 2019. The affidavit simply annexed a copy of the Decision.
2. On 9 September 2025, after the application was listed for final hearing before this Court, the applicant filed an outline of written submissions prepared by counsel.
3. On 22 September 2025, the solicitor for the Minister also filed and served an outline of written submissions prepared by counsel.
4. On 1 October 2025, the application was heard by this Court in person at Melbourne. Mr Krohn of counsel appeared for the applicant and Mr Kelly of counsel appeared for the Minister.

1. On behalf of the applicant, it was submitted that the Tribunal failed to consider each integer of the claims made by the applicant for protection. Reference was made to the decision of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [19] per Mason J and the Federal Court in SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 at [13]-[18] per Perry J. It was submitted that the Tribunal failed to engage seriously with the material before it (see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582 at [20]-[28] (Plaintiff M1/2021) and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [5], [69], [75], [82]-[84]).
2. It was submitted that the Tribunal failed to consider the applicant's explanation for his delay in applying for a protection visa. That explanation was that he was told by a migration agent that the best way to escape persecution was to travel to Australia as a student, and that obtaining a student visa was simply a means to an end. The end being protection in Australia from those who would harm him in Turkey.
3. Instead of considering that claim in context, the Tribunal found that the delay was a matter that should be weighed against the credibility of the applicant's claims for protection. In particular at [66] of the Decision, where the Tribunal held that it could have been expected that the applicant would have applied earlier for a protection visa if he had a genuine fear of returning. That was a failure to consider or engage with the explanation given by the applicant which was consistent with, rather than contradictory to, his claims for protection. Further, there is no statutory requirement that an application for a protection visa be made within any particular time. Timing may be a relevant consideration when assessing a claim but an explanation was given by the applicant but not properly considered by the Tribunal.
4. Secondly it was submitted that the Tribunal did not apply the correct legal test as required by ss 36(2)(a), 5H, 5J and 36(2)(aa) of the Act. Instead of applying a 'real chance' test or 'real risk' assessment, the Tribunal erroneously asked at [75] of the Decision whether the applicant 'would be' targeted if he were to return to Turkey. This was a standard of satisfaction that went beyond the statutory requirement of the Act. The Tribunal erroneously considered whether the applicant's feared consequences would definitely happen, rather than whether there was a small but real chance of harm. Reliance was placed on Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62.
5. Thirdly, it was submitted that the Decision was unreasonable. It was submitted that 'no reasonable decision maker could have so acted' in making the Decision. The findings of the Tribunal were also said to be illogical (citing Minister for Immigration and Citizenship v Li [2013] HCA 18 at [68] per Hayne, Kiefel and Bell JJ (Li)). The Decision was unreasonable because of the failure to consider the applicant's explanation for the delay in seeking protection and in failing to apply a 'real chance' test when assessing whether the applicant had a well-founded fear of persecution or was likely to suffer serious harm. It was submitted that whilst the Tribunal may reasonably have concluded that there was only a small chance of harm, the findings made by the Tribunal at [75] were so 'spectacular', it was impossible for the Tribunal, acting reasonably, to exclude a real chance of relevant harm. It was conceded that a finding that a decision is unreasonable should not be reached lightly, but in this case, the findings made by the Tribunal in [75] made the conclusion that the applicant did not face a real chance of harm, illogical and unreasonable on the accepted evidence.

1. On behalf of the Minister, it was submitted that the Tribunal expressly engaged with the applicant's explanation for delay and the advice that was allegedly given to the applicant. The Tribunal did so in [66] of the Decision and accepted the explanation given, but cast doubt on the applicant's well-founded fear of persecution because viewed objectively, the applicant was more likely to apply for a protection visa promptly if he had a genuine fear of persecution (CB 335). It was submitted that that conclusion was open to the Tribunal, logical and reasonable. The Tribunal gave an explanation for the conclusion reached, including that the advice may have been 'poor'. There was no jurisdictional error of the kind identified by the applicant in ground one of the application for judicial review. The claim made was considered, as was the applicant's evidence, but it was considered as a factor negating a well-founded fear of persecution. That it was not accepted as plausible by the Tribunal was not a failure to consider or engage with the applicant's claim.
2. It was also submitted that there was no error by the Tribunal in applying the appropriate test. When read as a whole, the Decision reflected the correct approach to the statutory test. The relevant test was identified by the Tribunal in [6] and [98] of the Decision and in Annexure A (CB 323, 341). The Tribunal found in [74] that the applicant would not face a real chance of serious harm and then explained the reasons for that conclusion in [75] and [76] (CB 337). The use of the word 'would' in [75] must be viewed in the context of the findings in [75] as to whether the applicant would be the subject of adverse attention or targeting, not whether there was a real chance of persecution or harm.
3. Finally, the Decision was not unreasonable, illogical or irrational within the meaning given in cases such as Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [34]. A finding of illogicality or irrationality is not easily made, and the Court should be slow to interfere (Djokovic at [33], [34]). The Tribunal's reliance on the applicant's delay was not irrational or illogical, but was rationally connected to the credibility of his claims for protection. Delay is a relevant consideration (Subramaniam v Minister for Immigration and Multicultural Affairs [1998] FCA 305 per Carr J). Delay was one of three reasons given for rejecting the applicant's claims of fear of persecution. The conclusions reached by the Tribunal were not based on delay alone.
4. The Tribunal's assessment of the risk of harm was not illogical, irrational or unreasonable. The conclusion reached was based on country information and objective acceptance that the applicant's connection with the Gulenist school attended by his daughter was unlikely to lead to his arrest or harm should he return to Turkey. That was a rational and logical conclusion open on the evidence. It was submitted that no material jurisdictional error has been identified by the applicant, and the application for judicial review should be dismissed.

1. The criteria for a protection visa are set out in s 36 of the Act and Sch 2 to the Migration Regulations 1994 (the Regulations). An applicant for a protection visa must satisfy one of the alternative criteria in ss 36(2)(a), (aa), (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 of such a person and that person holds a protection visa of the same class.
2. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
3. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in s 5J (2)-(6) and ss 5K to 5LA, of the Act. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia 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 being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B).
4. The role of this Court is not to review the merits or wisdom of the Decision; nor does it remake the Decision. The task of the Court is to rule upon the lawfulness or legality of the Decision by reference to the complaints made about it: see Djokovic at [17].
5. The issues to be determined in this application for review are as follows:

(a) Did the Tribunal fail to properly consider the explanation given by the applicant for the delay in seeking the visa;

(b) Did the Tribunal err in law by applying the wrong legal test when considering if there was a real chance that the applicant may suffer serious or significant harm, should he return to Turkey; and

(c) Was the Decision unreasonable in the sense that no reasonable decision maker could have arrived at the same decision?

1. A decision maker charged with the task of considering the criteria for the grant of a protection visa must engage in an active intellectual process and must read, identify, understand, evaluate and consider the claims or representations provided by the affected person (Plaintiff M1/2021 at [25] and Ali v Minister for Home Affairs [2020] FCAFC 109 at [45]). This includes claims not squarely or expressly raised, but which are apparent or clearly arise from the material before the Tribunal (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] and [61]).
2. The applicant submits that the Tribunal did not engage with the circumstances or submission that the applicant travelled to Australia in order to avoid persecution. However, that claim was clearly identified in [57], [58], [59], [62], [64], [65] and [66] of the Decision where the Tribunal actively engaged with the applicant's claims of persecution and his claims to have a well-founded fear of harm (CB 333-335). The claim was also inconsistent with the reason stated in answer to question 43 of the application for the visa where he stated that he travelled to Australia to improve his English (CB 30) (which was recorded by the Tribunal in [9] of the Decision) (CB 323). The Tribunal considered the applicant's explanation for delay was based on poor advice but found delay to be inconsistent with an applicant who genuinely feared returning to his receiving country. That inference was clearly open to the Tribunal. That was not a failure to actively engage with the evidence of the representations made by the applicant as to his fear of harm. The Tribunal not accepting the explanation as credible does not amount to a failure to engage with a claim or an integer of a claim. However, delay was not the only factor that the Tribunal considered as weighing against the grant of the visa. It was one of many factors that the Tribunal weighed, and the Decision reflects consideration of these factors and the explanation given for delay. There was no failure to engage with the evidence or the submissions of the applicant. Not every piece of evidence need be referred to nor every submission averted to in the Tribunal's written decisions (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [46] (WAEE)). In WAEE, French CJ observed at [47] that:

[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive, and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

1. Here, the reasons of the Tribunal were comprehensive and the claims for protection were considered in detail; the explanation given by the applicant for delay was identified but was not found to be proof of the claims for protection and instead, weighed against the veracity of those claims. That was not a failure to consider a claim or representations made by the applicant. The Tribunal did not fall into jurisdictional error as submitted by the applicant.

1. The Tribunal identified the test to be applied when assessing whether the applicant meets the refugee criteria or complementary protection criteria under the Act in [6] of the Decision (CB 323). It also included a summary of relevant principles in Annexure A to the Decision (CB 340). In particular, [76] of that Annexure is where the Tribunal explained the 'real chance' test. The Tribunal explained that 'a real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
2. The findings in [75] of the Decision do not depart from the application of that test (CB 337). Paragraph [75] must be read as a whole. It is not appropriate to isolate and construe the use of the word 'would' when considering whether the applicant would be the subject of adverse attention or would be targeted for his daughter's attendance at a Gulenist school in 2008 as applying the wrong test. There was no finding by the Tribunal that the applicant must or would suffer harm if he returned but rather, when read as a whole, [75] reflects that the Tribunal considered and then explained that there was no real chance of harm because the applicant was unlikely to be the subject of any attention or to be targeted. Therefore, the perceived risk was not real or well founded. The finding is not that there was no chance or no risk but rather, that the risk was remote or insubstantial in the circumstances. That was not an error in the application of the correct test or an error of law and did not amount to jurisdictional error by the Tribunal.

1. The applicant submits that the Tribunal has fallen into material jurisdictional error by making findings which are illogical in the sense that no reasonable decision maker could have so found, and the Decision is therefore unreasonable. Reliance was placed on Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 and Li at [68].
2. The findings that are said to be unreasonable are the finding at [66] that the delay in applying for a protection visa was indicative of not having a genuine fear of harm and the findings at [74] and [75] of the Decision that the applicant did not face a 'real chance' of relevant harm (CB 335, 337). In relation to the second finding, it was submitted that it was illogical for the Tribunal to accept that persons with links to the Gulenist movement in Turkey were arrested, there have been abductions of persons linked to the Gulenist movement in Turkey, authorities are aware of and monitor Gulenist linked schools in Australia, the applicant's daughter attended a Gulenist school in Australia, the applicant attended meetings of Gulenists and local imam in Australia have been used by the Turkish Government to report on Turkish citizens abroad, and then to conclude that the risk of relevant harm was not real. It was submitted that theses 'spectacular findings' could not be logically reconciled with a finding that the applicant did not face a real chance of significant or serious harm.
3. In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [132]- [135], Crennan and Bell JJ said:

[132] Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal's finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.

[133] However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. There was evidence that the first respondent was married with four children and that he regularly visited Pakistan to see his family after the time at which he said he commenced, as he put it, "the practice of homosexuality" in the UAE. In particular, he visited his family for three weeks before coming to Australia. During the time when he said he engaged in the "practice of homosexuality" in the UAE, and when he visited the United Kingdom, the evidence was that under both civil law and Shari'a in the UAE homosexual activity was criminalised[1]. The first respondent also gave comprehensive evidence of homosexual activity in the UAE which was uncorroborated. The Tribunal saw the first respondent give evidence and sought answers and explanations from him. Such was the evidentiary context in which the Tribunal determined that the first respondent's conduct, first in returning to Pakistan and secondly in failing to seek asylum in the United Kingdom, was conduct which was inconsistent with his claimed fears of persecution as a result of homosexuality.

[134] The process of reasoning followed by the Tribunal, which needs to be considered in the light of all of the evidence set out above, was as follows: the Tribunal appeared to accept that homosexuals as a social group in Pakistan were the subject of persecution. It also appeared to assume that a person with a genuine fear of persecution as a homosexual in Pakistan would not go back to Pakistan and that a person with such a fear would seek asylum at the first available opportunity. The Tribunal then examined the first respondent's conduct in the United Kingdom in 2006 and in returning to Pakistan for three weeks in 2007. The Tribunal asked whether that conduct was consistent with a fear of persecution based on the practice of homosexuality said to have occurred in the UAE. The Tribunal then concluded that the conduct was not consistent with the claims of homosexual conduct said to form the basis for the fear of persecution. The Tribunal essentially found that it was improbable that the first respondent feared persecution because of homosexuality as claimed. It is that conclusion which the Federal Court found illogical and irrational; it would have come to a different conclusion which appears to be largely based on the view that no‑one in Pakistan would necessarily discover that the first respondent had, as claimed, engaged in the practice of homosexuality. The Federal Court differed from the Tribunal in finding that the first respondent's fear of persecution as a result of homosexuality was plausible whereas the Tribunal had found it improbable.

[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.

1. Recently in EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128 at [35] and [36], Hill J made the following observations regarding legally unreasonable decisions:

[35] In this case, the Appellant does not contend that the ultimate outcome was unreasonable, but that certain critical findings of fact were. In Masi-Haini at [54], the Full Court queried, without deciding, whether it was consistent with Djokovic to treat illogicality in the course of making a "critical" finding of fact as a matter going to jurisdiction. In my view, it is: the arguments considered in Djokovic included arguments that there was a lack of evidence or material upon which to found central conclusions of fact within the process of reaching a relevant state of satisfaction: see Djokovic at [31]. Further, the "critical fact" approach is supported by statements by Crennan and Bell JJ that jurisdictional error may be able to be established on the basis of illogical or irrational findings "on the way" to the final conclusion: see Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [54] (Wigney J), citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [132]. This approach also promotes consistency with the closely related principles relating to legal unreasonableness, which applies to both the outcome of the decision and the process by which it is made (including the reasoning that led to that outcome): see Palmer at [101]; Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; (2023) 297 FCR 162 at [81] (Mortimer CJ).

[36] To be clear, this does not mean that any illogical or irrational finding of fact will constitute jurisdictional error: jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: SZXUN at [55]; BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151; (2020) 280 FCR 26 at [29] (the Court); XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 at [63]- [64] (the Court). In this way, the "critical step" approach to the illogicality or irrationality ground has a built-in requirement of materiality, and can be readily accommodated with the High Court's discussion of materiality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [6]: see Masi-Haini at [52]; VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983 at [108]- [109] (Button J).

1. In this case, the findings of the Tribunal in the Decision at [66] and [74]-[75] were logical and rational because there was room for a logical or rational person to reach the same decision on the same material before the decision maker (CB 335 and 337). It could not be said that Decision or the findings of fact were simply not open on the evidence. There was a delay of five years in the applicant applying for the protection visa. The applicant sought to explain that delay due to poor advice and that he always had a continuous underlying fear of harm whilst holding student visas. The Tribunal was not bound to accept that explanation, and it was not irrational or illogical to infer that the delay was due to the absence of a well-founded fear of harm. It was also rational for the Tribunal to on the one hand, accept that citizens of Turkey that have had association with the Gulenist movement may face some forms of harm in Turkey, but on the other hand, the involvement of the applicant in Gulenist activities in Australia and the attendance of his daughter at a Gulenist school in Australia would be unlikely to result in adverse attention or targeting of the applicant. The reasoning was not unintelligible or illogical. The applicant may not agree with the findings, but that does not mean that the Decision is unreasonable. The characterisation of a decision as unreasonable because of illogicality or irrationality is not easily made (Djokovic at [33]). The findings of the Tribunal in the Decision are well within the range of possible lawful outcomes.
2. The Decision was not legally unreasonable, and the Decision should not be quashed and remitted on that ground.
3. The applicant has not established jurisdictional error by the Tribunal. The application for judicial review is dismissed.

1. The name of the first respondent will be amended to 'Minister for Immigration and Citizenship', which is the current Ministerial title which changed on 13 May 2025.

1. The Court will hear the parties on the question of costs including any duplication of the costs of the related proceeding.

1. The name of the first respondent is amended to 'Minister for Immigration and Citizenship'.
2. The application for judicial review filed 27 May 2019 be dismissed.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.