DSA19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1095

EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518

Fox v Percy (2003) 214 CLR 118; HCA 22

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

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; FCAFC 11

Minister for Immigration and Border Protection v SZUXN [2016] FCA 516

Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332; HCA 18

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; HCA 16

Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577; FCAFC 159

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; FCA 1105

Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198

SZRLQ v Minister for Immigration and Citizenship [2013] FCA 566; (2013) 135 ALD 276; FCA 566

SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; (2013) 140 ALD 78; FCA 123

SZSHV v Minister for Immigration and Border Protection [2014] FCA 253

SZWCO v Minister for Immigration and Border Protection [2016] FCA 51

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. The name of the first respondent be amended to 'Minister for Immigration and Citizenship'.
2. A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 4 September 2019 into this Court for the purposes of quashing it.
3. A writ of mandamus shall issue, requiring the Administrative Review Tribunal to re-determine, according to law, the application for review before it.

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

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Before the Court is an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 4 September 2019. By that decision, the Tribunal affirmed a decision made by a delegate (delegate) of the first respondent (Minister) on 2 May 2016 to refuse to grant the applicants' Subclass 866 Protection (Class XA) visas (protection visas).
2. The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
3. For the reasons that follow, the application succeeds.

1. The relevant background to the matter was summarised in the parties' written submissions, which I primarily adopt.
2. The applicants are Bangladeshi nationals who arrived in Australia on 30 July 2015.[1] This family unit comprises a woman (the first applicant), her husband (the second applicant) and their young daughter (the third applicant). The first and second applicants were married in Bangladesh in January 2010.[2] The third applicant was born in Bangladesh in October 2014.[3]

1. The applicants applied for protection visas on 6 October 2015, in which both the first and second applicants made claims for protection.[4] Those claims were detailed within the protection visa application form and statements made by the first and second applicants.
2. In the first applicant's statement,[5] she raised the following claims:

(a) She is a Christian of the Catholic faith who faced intimidation and harassment.

(b) She worked as a music teacher in Bangladesh and was targeted by Muslim groups because she taught Christian songs to Muslim children.

(c) In 2001, she became a singing member of the Bangladesh Udichi Shilpigosthi (Udichi), a performance group that was part of a movement against religious extremism and to promote democracy. As part of her singing role in Udichi, she was involved in the Shahbag Movement and performed at political rallies. This made her a target of Islamic extremists.

(d) In 2002, Islamic extremists tried to abduct her, but she escaped and had to stop attending college.

(e) On 19 April 2013, she participated in a performance with Udichi. When she returned to her home after the performance, she was beaten and accused of being an infidel engaging in anti-Islamic activities (April 2013 incident). She had a miscarriage during the attack.

(f) She continued her involvement with Udichi, taught songs at her local church and was harassed because of her Christian activities.

(g) On 26 June 2015, she and her husband were attacked by three Islamic extremists (June 2015 incident). Her husband was injured and hospitalised as a result of the attack. The applicants' lodged a 'General Diary' at Kafrul police and the incident was reported in the newspaper.

(h) On 13 August 2015, after the applicants arrived in Australia, people visited their home in Bangladesh looking for them and attacked her brother (August 2015 incident). Her family lodged a 'General Diary' at the police station and the incident was reported in the newspaper.

1. In the second applicant's statement,[6] he referred to a range of matters including the April 2013 incident, the June 2015 incident and the August 2015 incident. He claimed he would be targeted because he is Christian and because his wife, who was involved in the Shahbag Movement, promoted Christianity through music teaching and singing.
2. On 7 March 2016, the applicants attended an interview with the delegate.[7]
3. On 2 May 2016, the delegate refused to grant the applicants' protection visas. The delegate was not satisfied the first applicant faced serious harm as a Christian in Bangladesh. The delegate did not accept the first applicant was threatened by Muslim parents for teaching their children Christian songs. Nor did the delegate accept the first applicant was physically harmed by Islamic extremists because of her involvement in the Shahbag Movement. As the delegate did not accept the aforementioned claims of the first applicant, they did not accept the second applicant's claim that he had been threatened and physically harmed by Islamic extremists.[8]

1. On 20 May 2016, the applicants applied to the Tribunal for review of the delegate's decision.[9]
2. The applicants attended three hearings before the Tribunal on 12 February 2019,[10] 12 March 2019,[11] and 19 June 2019.[12]
3. On 8 July 2019, the Tribunal invited the applicants to comment on or respond to information in accordance with s 424A of the Act (Tribunal's invitation to comment).[13] The applicants were invited to comment on information relating to the following matters:

(a) inconsistencies between evidence given by the first applicant, the second applicant and a witness in relation to the April 2013 incident; and

(b) inconsistencies between evidence given by the first applicant and the second applicant in relation to 'why, when and where' photographs of the second applicant's injuries were taken after the June 2015 incident.

1. On 29 July 2019, the applicants, by way of their representative, responded to the Tribunal's invitation to comment (applicants' response to the Tribunal's invitation to comment).[14]
2. On 4 September 2019, the Tribunal affirmed the decision under review.

1. The Tribunal identified the criteria for a protection visa set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth), whereby an applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c).
2. The Tribunal summarised the applicants' claims for protection (at [11]-[28]), the applicants' evidence submitted prior to the Tribunal hearings (at [29]-[34]), the evidence and submissions provided during the Tribunal hearings (at [35]-[42]), and the applicants' response to the Tribunal's invitation to comment (at [43]-[54]).
3. The Tribunal noted the applicants' request that it contact seventeen witnesses by telephone, being twelve witnesses in Bangladesh and a further five witnesses in Australia, whom the applicants submitted could give the Tribunal evidence to support and corroborate their claims. As the Tribunal did not have any doubts in relation to the claims raised in relation to the religious identification, observance and practice of the applicants, it determined that it was unnecessary for it to contact those witnesses.[15]
4. The Tribunal did, however, try to contact by telephone the six witnesses in Bangladesh whom it was claimed could give the Tribunal corroborating evidence about the April 2013 incident and the June 2015 incident. The Tribunal was unsuccessful, after multiple attempts, to contact all but one of those witnesses, 'Ms EG'.[16]
5. In its consideration of the applicants' claims and evidence, the Tribunal made relevant findings in relation to:

(a) the incident claimed to have occurred in 2002;[17]

(b) the applicants' delay in leaving Bangladesh and delay in claiming protection after arriving in Australia;[18]

(c) the applicants' failure to apply for protection in the United Kingdom;[19]

(d) the April 2013 incident and the June 2015 incident;[20] and

(e) the August 2015 incident which occurred after the applicants had arrived in Australia.[21]

1. In relation to the incident claimed to have occurred in 2002, the Tribunal found that the first applicant did not, and does not, fear harm in Bangladesh because of this incident. In reaching this finding, it noted that the first applicant described the incident as 'separate' or 'isolated' and of no importance to her in 2002.
2. In relation to the applicants' delay in leaving Bangladesh and later claiming protection in Australia during 2015, the Tribunal:

(a) noted the applicants' delayed their departure from Bangladesh before travelling to Australia;

(b) observed that the applicants waited over two months after arriving in Australia to lodge their protection visa application;

(c) noted the evidence of both the first and second applicants about their indecision to remain in Australia stemmed from a variety of matters including that they had good jobs in Bangladesh, their life was there, their families were there, it was difficult and painful for them to decide not to return to their country, they had to spend time talking to family and lawyers, there was a language barrier here, and that things took time to arrange;

(d) did not consider the applicants gave a reasonable or plausible explanation either for being undecided in relation to returning Bangladesh or why they delayed applying for protection in Australia. The Tribunal rejected the explanations given the seriousness of the harm the applicants claimed to fear, including their claims about what happened to them on 26 June 2015 (two days before they were granted their Australian visas), and their claims that they were receiving ongoing abuse and threats of harm (because they were in a religious minority).

1. Specifically in relation to the applicants' failure to apply for protection in the United Kingdom, the Tribunal noted that the first and second applicants visited the United Kingdom in July/August 2014, after the claimed April 2013 incident, yet did not apply for protection. The Tribunal asked the applicants why they did not claim protection, nor stay in the United Kingdom for the length of time the visa they held allowed, to which the first applicant stated she thought she had to take it in her stride, that she had a permanent job in Bangladesh, she wanted to live in her country, and she thought it would not be repeated and was an isolated incident. The second applicant told the Tribunal they were only visiting the United Kingdom, that he did not want to leave his country because of a 'stray incident', he had a good job in Bangladesh, and he thought they would 'be ok' in Bangladesh. The Tribunal found that neither explanation was consistent with the claims that they had been harmed and feared further harm in Bangladesh because they were part of a Christian/Roman Catholic minority that received ongoing and increasingly vicious threats in Bangladesh.
2. The Tribunal concluded that the failure to apply for protection in the United Kingdom in July/August 2014, the delay in departing Bangladesh and the delay in applying for protection in Australia in 2015 were matters inconsistent with the applicants' claims that they were targeted and threatened in Bangladesh and attacked by Islamic extremists in Bangladesh in April 2013 and June 2015.
3. Given its findings outlined above, and its rejection of the evidence of Ms EG, the first applicant and the second applicant as outlined below, the Tribunal concluded the first and second applicants had not given truthful evidence about what happened to them in Bangladesh. In particular, it found the first and second applicants had not given truthful evidence about the April 2013 incident and the June 2015 incident, and on that basis concluded that these incidents did not occur as claimed. It also rejected the claim that people searching for the applicants went to the applicants' family homes on 13 August 2015.
4. In considering the applicants' response to the Tribunal's invitation to comment, namely that Ms EG had difficulties at the time she gave her oral evidence to the Tribunal, the Tribunal found this was not a reasonable or plausible explanation having regard to the nature and extent of the differences in her evidence, especially in relation to the year of the occurrence of the incident and who was present during the incident. Accordingly, the Tribunal found that both the oral evidence of Ms EG and the evidence given in her written statement was not reliable.
5. The Tribunal also considered the evidence of the first and second applicants in relation to two photographs provided in support of the claim that they were both 'attacked' by Islamic extremists as part of the June 2015 incident, during which the second applicant sustained injuries requiring medical attention. The Tribunal recorded that, when questioned about the photographs at hearing, the applicants gave different evidence about why, when and where these photographs of the second applicant's claimed injuries were taken, in particular the injury to his face. In the Tribunal's view, the applicants' response to the Tribunal's invitation to comment on this concern did not amount to a reasonable or plausible explanation for the different evidence provided by the applicants at hearing. On that basis, the Tribunal concluded the photographs of the second applicant's claimed injuries were neither reliable evidence that the second applicant had been injured in an attack on him in June 2015 nor reliable evidence of any such attack having occurred. The Tribunal found the applicants had given 'untrue' evidence in relation to their claims that the second applicant was injured in an attack on the two of them in June 2015. The Tribunal was of the view that these copies of photographs were produced by the applicants in support of their application for protection to give credence to their claims that such an attack occurred in June 2015 so that they would have a better chance to be granted a visa to remain in Australia.
6. Having considered country information about the prevalence of document fraud in Bangladesh and the Tribunal's credibility concerns, the Tribunal also found the document described as an application to the police for a 'general diary' entry in relation to the June 2015 incident was not reliable evidence.[22]
7. In light of the Tribunal's concerns about the credibility and reliability of Ms EG's evidence, and concerns about the credibility of the applicants, it found that the statements of the five witnesses whom the Tribunal was unsuccessful in contacting were not reliable and gave them no weight.[23]
8. The Tribunal did not accept the applicants' claims that they could not return to Bangladesh for the reasons claimed. Considering country information and given that the applicants lived in Bangladesh for many years with ongoing involvement in the Christian community, the Tribunal found there was no real chance or real risk of serious or significant harm from those the applicants claimed to fear.[24]
9. The Tribunal noted medical evidence about the treatment of the third applicant in Australia for a heart condition and the evidence that no further surgery was proposed. Given the evidence that the third applicant received treatment for her heart condition in Bangladesh before coming to Australia, the Tribunal found that there was no real risk of significant harm arising out of a claim that the third applicant could not get proper and adequate medical care and treatment in Bangladesh.[25]
10. The Tribunal found the applicants do not have a genuine fear founded upon a real chance of persecution for any one or more of the reasons set out in s 5J(1)(a) of the Act. The Tribunal also found that, for the purposes of s 36(2)(aa) of the Act, there were not substantial grounds for believing that there is a real risk that any of the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to a receiving country.[26]
11. Accordingly, the Tribunal was not satisfied that any of the applicants was a person in respect of whom Australia had protection obligations and therefore did not satisfy the criterion set out in ss 36(2)(a) or (aa) of the Act. Having made that finding, the Tribunal also found that the applicants were unable to satisfy the criterion in either s 36(2)(b) or (c) of the Act.[27]

1. By way of an amended application filed on 11 April 2025, the applicant raises the following two grounds of review (reproduced without alteration):
   1. The Tribunal failed to exercise its jurisdiction to assess the credibility of the First Applicant, or exercised it in a manner that was unreasonable.

Particulars

a) The Tribunal compared accounts given by a witness in a written statement made in 2015 and answers to questions at interview in 2019, and relied on discrepancies in those accounts to conclude that her claim was a fabrication, and also relied on discrepancies relating to photographs of the Second Applicant's injuries following an assault in 2015. In doing so the Tribunal applied a naïve and widely discredited view of memory resulting in a failure to assess the witness's credibility in a professional manner, or else made an assessment that was so unreasonable that no reasonable Tribunal could have assessed it in that manner.

b) In finding that the Applicants' claims were not plausible the Tribunal took into account a discrepancy in relation to when certain photographs of injuries sustained by the Second Applicant had been taken, without giving any explanation as to the relevance of that discrepancy to the question of whether or not the injuries had been sustained.

1. The Tribunal incorrectly or unreasonably applied to the meaning of "well-founded fear" in s 5J of the Act an interpretation requiring a particular type of behaviour that is not a necessary or implicit part of the definition.

Particulars

The Tribunal took the view that the Applicants' delay of a month between obtaining visas for Australia and leaving their country, and a subsequent delay of a little more than two months between arriving in Australia and applying for protection visas was inconsistent with their claim to be refugees despite they explanations given by the Applicants that they were not immediately sure whether they should leave the country immediately or permanently.

The definition states that a person is a refugee if they are "outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country". The definition does not imply that the person must have taken immediate steps to leave, or become unwilling to return to their country immediately upon acquiring a well-founded fear of persecution. A person may have a well-founded fear without immediately deciding that they should leave or not return to their country because of that fear.

1. At hearing before me on 6 May 2025, it became apparent during the making of oral submissions in relation to Ground 1 that the Court would be assisted by further submissions from both parties concerning the Tribunal's findings in relation to the two photographs of the second applicant's injuries which had been provided to corroborate the applicants' claims for protection. Accordingly, I made orders for the filing of post-hearing supplementary written submissions. On 9 May 2025 and 16 May 2025, the applicant and Minister respectively filed their supplementary written submissions. Those submissions, where relevant, are addressed below.

1. By way of this ground, the applicants contend the Tribunal failed to exercise its jurisdiction to assess the credibility of the first applicant, or exercised it in a manner that was unreasonable. By way of particulars, the applicants take issue with two aspects of the Tribunal's series of adverse credibility findings:

(a) First, the applicants allege the Tribunal failed to properly assess the credibility of the witness, Ms EG, because it applied 'a naïve and widely discredited view of memory' when it made adverse credibility findings on the basis of inconsistencies between her statement dated 19 July 2015 and her oral evidence at hearing on 19 June 2019 about matters relating to April 2013 incident. For sake of clarity, I will refer to this as Ground 1a.

(b) Secondly, the applicants allege the Tribunal erred when making an adverse credibility finding as a result of the inconsistency between the evidence of the first applicant and the second applicant in relation to the assault of the second applicant during the June 2015 incident. For sake of clarity, I will refer to this as Ground 1b.

1. Before examining the Tribunal's credibility findings in relation to each of these matters, it is helpful to set out the relevant principles which govern legal unreasonableness in the context of adverse credibility findings based upon inconsistencies in evidentiary material.

1. The obligation to give reasons extends to giving reasons for any credibility or reliability findings necessary to dispose of a matter. The evolution of legal unreasonableness since Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; HCA 16 (SZMDS) and Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332; HCA 18 has facilitated the advent of greater judicial scrutiny of a Tribunal's reasons and any credibility findings made.
2. Assessment of credibility is an inherently difficult process and modern authority emphasises that when assessing the credibility of a propounded narrative, decision-makers are encouraged 'to limit their reliance on the appearances of witnesses and to reason their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events': Fox v Percy (2003) 214 CLR 118; HCA 22 at [31] per Gleeson CJ, Gummow and Kirby JJ.
3. Credibility assessment requires more than a recitation of the claims, evidence and submissions followed by a series of bald findings on credibility or reliability. Credibility findings must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made: see EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 at [36] per Stewart J, citing SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. See also DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; FCAFC 2 at [30] per Kenny, Kerr and Perry JJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; FCAFC 11 at [11] per Allsop CJ.
4. It follows that adverse credibility findings are amenable to judicial review where the findings can be shown to be legally unreasonable, such as by being based on illogical or irrational findings or inferences of fact: see BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (BQQ15) at [50] per Yates, Wheelahan and O'Bryan JJ. The following principles guiding judicial review of adverse credibility findings were outlined by the Full Court in BQQ15 at [51]:

(a) Whether or not a credibility finding is affected by jurisdictional error is a case specific enquiry and should not be assessed by reference to fixed categories or formulae.

(b) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reason or a finding of fact was immaterial, or not critical, to the ultimate conclusion or end result (such as, for example, where it is by one of several findings that independently may have led to the ultimate decision).

(c) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error. This is to avoid judicial review transgressing into the impermissible area of merits review: see SZMDS at [96]. Even emphatic disagreement with the Tribunal's reasoning is not sufficient to make out illogicality: see SZMDS at [124].

1. It is not uncommon for an applicant to provide more than one account of the basis for a claim across different stages of a decision-making process. This may be particularly so where interpretation is required. Variations between such accounts may reasonably arise due to the passage of time, the effects of stress, or linguistic limitations. In such circumstances, differences in detail or emphasis, particularly where a claim is raised before the Tribunal for the first time or is further elaborated, may be explicable by reference to the context in which the information is provided or the procedural stage at which it is given. Moreover, discrepancies between individuals' accounts of the same event might well be attributed to differences in perception, impression, and memory. In some instances, individuals may give the same inquisitor inconsistent accounts of the same event as each individual may have a different understanding of the inquiry having been put to them. Such variations in the retelling of a narrative do not, without more, necessarily reflect adversely upon an applicant's credibility.
2. In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5], Burchett J found it necessary to make the following comments:

The Tribunal should understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

1. A Tribunal's over-ready use of labels such as 'inconsistency' or 'discrepancy' when characterising evidence of events invites error. Simply labelling something as 'inconsistent' and moving immediately to an adverse finding of credibility or reliability may be irrational or legally unreasonable. In AVQ15 v Minister for Immigration and Border Protection (2018) 216 FCR 83; FCAFC 133 (AVQ15) at [28] per Kenny, Griffiths and Mortimer JJ, the Full Court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. At [22]-[28], their Honours articulated a series of general statements and guiding principles relevant to the assessment of an asylum seeker's credibility, particularly in circumstances where inconsistencies arise within the applicant's narrative:

22. The UNHCR, in its report entitled "Beyond Proof: Credibility Assessment in EU Asylum Systems", 2013 at p 27, has described "credibility", in the context of asylum applications, in the following terms, which we consider to be an appropriate description:

In the English language, the ordinary meaning of 'credibility' is whether something or someone is capable of being believed, or alternatively, whether something or someone is trustworthy or reliable. 'Credible' is defined as "able to be believed or convincing."

...

The term 'credibility assessment' in this context is used to refer to the process of gathering relevant information from the applicant, examining it in the light of all the information available to the decision-maker, and determining whether the statements of the applicant relating to material elements of the claim can be accepted, for the purpose of the determination of qualification for refugee and/or subsidiary protection status.

(Footnotes omitted.)

23. A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant's credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.

24. In their text, The Law of Refugee Status (2nd edition, 2014) at p 139, James Hathaway and Michelle Foster describe the assessment of credibility as often being based on one or more of four matters: plausibility, relevant knowledge of an asylum seeker, demeanour and consistency of testimony. The learned authors discuss in detail (at pp 139-149) the comparative jurisprudence on these four features of credibility assessments, including references to many decisions of this Court dating back 20 years. The necessity for care, fairness and a reasonable approach, in order to avoid what the learned authors describe at one point as "a quest to disbelieve" (at p 138), or to avoid irrationality or legal unreasonableness in an approach to credibility assessment, is evident from the comparative authorities there discussed, including as we have noted, many authorities from this Court. The learned authors conclude (at pp 148-149):

As can be seen, the tools available to assess the credibility of an applicant's testimony are each highly flawed. Reliance on plausibility is prone to inferences based on assumptions of rationality often at odds with conditions in the country of origin. The use of knowledge tests is problematic given difficulties to identify both true core knowledge and knowledge that is appropriate to a person in the applicant's particular circumstances. Demeanor assessment is of necessity benchmarked against some assumption of universal normalcy (which does not actually exist), and can prove especially ill-suited to assessing the claims of women, children, and victims of trauma. And a focus on the consistency of testimony is based on a false psychological assumption about the nature of truth-telling over time, and can be heavily skewed by an applicant's understandable reluctance to be forthcoming at early stages of the determination process and where evidence is provided (as is normally the case) through an interpreter. Real caution is thus appropriate before any adverse inference regarding credibility is drawn on one of these bases.

(Footnotes omitted.)

25. One authority to which Hathaway and Foster refer is the decision of a Full Court of this Court in W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 (W375/01A) where the Court (Lee, Carr and Finkelstein JJ) said at [15]:

As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

26. Consistently with its task on review, and bearing the reality to which the Full Court in W375/01A referred steadily in mind, appropriate attention has to be given by a decision-maker (here, the Tribunal) to all relevant material in making a finding of inconsistency which then underpins an adverse credibility assessment. As will shortly emerge, this did not occur here because the Tribunal overlooked what the appellant had earlier told a Departmental officer at the appellant's interview and this material was highly relevant to the question whether the appellant had given inconsistent evidence in support of his case.

27. Secondly, the term "inconsistency" should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis. As we have noted above, adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents. In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.

28. Thirdly, even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person's case as a whole and whether the inconsistency is on a matter which is central to the person's case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.

1. In ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271; FCAFC 38 (ASB17) at [44] - [45] per Griffiths, Mortimer and Steward JJ, the Full Court articulated a series of general observations in relation to the effect of inconsistencies upon the proper discharge of the Tribunal's fact-finding task:

44. Some true "inconsistencies" may be objectively irrelevant to the fact-finding of a decision-maker. Some may be explicable, or excusable. Some may be critical to fact-finding. Some may reflect on the credibility or reliability of an applicant, and some may not. As the Full Court said in AVQ15 at [28], the decision-maker's task requires her or him to "assess the significance of that inconsistency and the weight to be given to it". Again, simply attaching the label "inconsistency" and moving immediately from the label to an adverse finding of credibility or reliability, may not be a rational or legally reasonable approach.

45. It is also worth recalling that complete consistency in a narrative or an account of events, especially traumatic events, or events occurring some time ago, may in some circumstances be probative of a lack of credibility. There may come a point at which a person's narrative of past events is too complete, making no allowance for the imperfections of human observation and memory, and that may in itself demonstrate lack of reliability or credibility. This is a further illustration of why, as the Full Court said in AVQ15, where a person has been required to give more than one account or narrative of events, often separated by considerable periods of time and circumstances, care needs to be taken in weighing and assessing the probative value of various accounts.

Ground 1a. - Adverse credibility finding in relation to the inconsistent evidence of Ms EG in relation to the June 2013 incident

1. The applicants submit the Tribunal failed to comply with an applicable legal standard for administrative fact-finding by making an adverse credibility finding which is legally unreasonable. In particular, the applicants contend that the Tribunal did not appreciate the impact of the passage of time upon Ms EG's memory, as well as the stress she was under at the time of the Tribunal hearing, which impacted upon her ability to provide a consistent account of the events she witnessed during the April 2013 incident.
2. The Minister submits the Tribunal found Ms EG gave 'materially different' oral evidence at the hearing on 19 June 2019 about the April 2013 incident from that in her written statement dated 29 July 2015.[28] In her statement, Ms EG stated the incident occurred on 19 April 2013. However, in oral evidence Ms EG stated that it happened in 2015 or maybe in 2016. She also gave different evidence about where she was during the incident and whether or not the second applicant was at the scene of the incident. These, and other, inconsistencies were put to the applicants by way of the Tribunal's invitation to comment. The Tribunal expressly considered the response that Ms EG had difficulties at the time she gave her oral evidence because she was stressed as a result of her husband's illness, but found this was not a reasonable or plausible explanation having regard to the nature and extent of the differences in her evidence, especially the inconsistencies in relation to 'the year of the occurrence of the incident and who was present at the incident'.[29]
3. At the outset, I make some preliminary, and perhaps obvious, remarks about the Tribunal's fact-finding task before delving into any analysis of whether it had miscarried in this instance. It is uncontroversial to state that fact-finding is the province of the Tribunal, and not the Court. Facts must be found, by way of the acceptance or rejection of claims, in order for the Tribunal to then proceed towards the determination of whether a criterion within s36 of the Act has been satisfied. It is the Tribunal's carriage of that fact-finding task which is of concern to the Court. When assessing whether legal unreasonableness has been made out, it is inappropriate for the Court to insert itself into a quasi-fact-finding role in order to establish whether an approach taken by a Tribunal was reasonable in the circumstances. Rather, when examining an adverse credibility finding, the Tribunal's process of reasoning is to be assessed for illogicality or irrationality with appropriate deference towards the Tribunal's scope of decisional freedom. In SZMDS, Crennan and Bell JJ explained at [131] that:

...the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

1. That said, I agree with the Minister's submission that there was plainly substance to the Tribunal's finding that Ms EG's evidence about the April 2013 incident was 'materially different'. While I acknowledge the evidence was given in different formats almost four years apart, the Tribunal did consider the explanation given for the discrepancies but was unpersuaded by that explanation. It formed the view that the applicants did not satisfactorily explain how Ms EG was unable to give definitive and consistent oral evidence in relation to significant matters relating to the April 2013 incident, including the year the incident occurred and who was also present at the incident.
2. While not determinative of this issue, I note that the applicants did not inform the Tribunal before the hearing of any difficulty Ms EG might have when giving evidence at hearing. There were numerous opportunities for the applicants to have raised that possibility, including by way of the document provided to the Tribunal at the hearing on 19 June 2019 which detailed the names and contact telephone numbers of witnesses who would 'be able to give evidence'.[30] Such information may well have enabled the Tribunal to take a different approach when taking Ms EG's oral evidence.
3. In any case, the applicants did not complain about the manner in which the Tribunal elicited evidence from Ms EG during the hearing but simply asserted following the hearing that the inconsistencies between Ms EG's oral evidence and written statement were due to the 'stress and depression' occasioned by the illness of Ms EG's husband and her own 'physical, mental and personal illness'.[31] Notably, and contrary to the applicants' submissions to this Court, that explanation did not make any reference to the impact of the passage of time upon Ms EG's memory. Rather, the explanation centred around the impact of stress upon Ms EG's memory. The explanation was a matter for the Tribunal to take into account, which it did, when rejecting the explanation given for the inconsistencies.
4. In my view, there was nothing illogical or irrational in the Tribunal's consideration and ultimate rejection of that explanation for the inconsistencies in Ms EG's evidence. The rejection was based upon a view that Ms EG, as an eye witness, would at least have been able to give consistent evidence on material aspects of the narrative in relation to the April 2013 incident. A fair reading of the Tribunal's reasons as a whole indicates that the Tribunal had formed the view that the inconsistencies were significant in the sense that they did not relate to objectively minor matters of fact and that it expected such matters would have been recalled at hearing despite the circumstances described in the explanation given. In my view, taking into account the material before the Tribunal, the reasoning adopted by it to reject the applicants' explanation for the inconsistencies and its making of an adverse credibility finding in that regard was an approach that was entirely open to the Tribunal for the reasons it gave. That reasoning was not so illogical or irrational or unreasonable such that it could be said that no decision-maker could have taken that path in the circumstances of this case.
5. Accordingly, Ground 1a. does not succeed.

Ground 1b. - Adverse credibility finding in relation to the inconsistent evidence of the first and second applicants in relation to the June 2015 incident

1. Again, the applicants submit the Tribunal failed to comply with an applicable legal standard for administrative fact-finding by making an adverse credibility finding which is legally unreasonable. The applicants essentially raise two issues with the Tribunal's reasons in relation to its rejection of the claims relating to the June 2015 incident. By way of:

(a) pre-hearing submissions the applicants contend the Tribunal failed to give an explanation of the relevance or significance of an inconsistency between the evidence of the first applicant and the second applicant in relation to the assault of the second applicant and how that bore upon the Tribunal's rejection of the claim that the June 2015 incident had occurred. For sake of clarity, I will refer to this as the significance argument.

(b) post-hearing submissions, the applicants further allege the Tribunal erred by failing to consider the explanation given for the inconsistency in the oral evidence of the first and second applicants in relation to two photographs provided to the Tribunal as evidence of the assault of the second applicant in June 2015. For sake of clarity, I will refer to this as the explanation argument.

1. The applicants take issue with the Tribunal's reasons set out at [79] of its decision. It is helpful at this juncture to set out the entirety of that paragraph before further addressing the parties' submissions on this issue:

In support of the applicants' claims that they were both attacked by Islamic extremists on 26 June 2015 and that applicant 2 was injured/cut on his face during the attack the applicants produced copies of two photographs described as showing the injuries of applicant 2, including a photograph which the applicants both claim show a gash on his face. When the Tribunal questioned the applicant and applicant 2 about the photographs the applicants gave different evidence about why, when and where these photographs of applicant 2's claimed injuries were taken, in particular the injury to his face; the particulars of the oral evidence given by the applicant and applicant 2 to the Tribunal are set out in the s.424A letter sent to the applicants by the Tribunal; the contents of the s. 424A letter are set out in full earlier in this decision. Given that the evidence of the applicants was different as to why, when and where the photograph of the applicant's alleged facial injury was taken, in the Tribunal's view the response to the s.424A letter did not provide a reasonable or plausible explanation for the different evidence provided by the applicants at the hearing. The explanation was that applicant 2 was confused about the photographs and that photos taken for their visa applications on 15/16 June 2015 and also cctv footage at the place which processes the Australian visas confirm there were no marks on her husband's face at that time of application for the visa. The Tribunal finds that the photographs of applicant 2's claimed injuries are not reliable evidence that the applicant 2 was injured in an attack on him in June2015 as the applicants claim and they are not reliable evidence that such an attack occurred. The Tribunal finds that these copies of photographs were produced by the applicants in support of their application for protection to give credence to their claims that such an attack occurred so that they would have a better chance to be granted a visa to remain in Australia. The Tribunal finds that the applicants have given the Tribunal untrue evidence in relation to their claims that applicant 2 was injured in an attack on the two of them in June 2015.

1. In my view, a fair reading of the Tribunal's reasons as a whole reveals the Tribunal regarded the inconsistency between the oral evidence of the first and second applicants about the two photographs depicting images of the second applicant's injuries to be significant. At [50] - [52] of its decision, the Tribunal provides considerable detail in relation to the discrepancies between each applicant's oral evidence about the photographs and records its concern raised in the Tribunal's invitation to comment that, without adequate explanation, these discrepancies may lead it to conclude that the photographic evidence was fabricated and that the first and second applicants had not given a truthful account of events in Bangladesh they have detailed in support of their claim for protection. The Tribunal's reasons thereby disclose its consideration of the significance of the inconsistency in terms of its how it undermined the probative value of the photographic evidence in terms of its ability to substantiate the claims raised in relation to the June 2015 incident. Having regard to the limited evidentiary material submitted with respect to the June 2015 incident, particularly contemporaneous evidentiary material, and the centrality of this incident to the claim for protection, it is was clearly open to the Tribunal to form the view that this inconsistency was significant. Accordingly, this argument cannot succeed.

1. The applicants contend the Tribunal did not fully engage with the explanation given for the discrepancy between the oral evidence of the first and second applicants at hearing as to why, when and where the photograph of the second applicant's alleged facial injury was taken.[32] That explanation was set out in the first applicant's statement dated 29 July 2019 which had been provided by way of response to the Tribunal's invitation to comment. Relevantly, that statement read:[33]

In relation to the second issues, my husband got confused because our mutual friends (Mr [name deleted] and [name deleted]) when they visited the hospital took photos before the treatment as well and at that time I was not at the scene as I went outside to buy medicine. After we came back home in order to give to the Police, I took the photo after the treatment. Due to that, my husband said he got confused and said that the photos were taken at the hospital. Since there were two times that the photographs were taken, he got confused of the photograph given to the Police. It should be noted that the photograph given to the police was taken by me after the treatment.

1. The applicants contend the Tribunal's reasons do not disclose adequate consideration of the entirety of the explanation. They acknowledge the Tribunal recognised the second applicant's confusion, but maintain the Tribunal neither recognised nor addressed the oral evidence and further explanation given for the source of that confusion whereby one photograph had been taken at the hospital by friends on a handheld camera (while the first applicant was absent buying medication) for the purpose of showing the first applicant his injuries without having to rely upon a mirror, while the other photograph was taken afterwards at the applicants' home by the first applicant (while she was redressing her husband's wounds) for the purpose of providing it to the police as part of filing a report. The applicants maintain this error was material as had the Tribunal considered the entirety of the explanation, it could have been persuaded by it and come to a different conclusion about the probative value of the photographs as evidence that the June 2015 incident had occurred.
2. By way of response, the Minister submits that the Tribunal considered the explanation and there is no basis to any contention that the explanation was overlooked, misunderstood or not considered in its entirety. In support of that submission, my attention was drawn to various aspects of the Tribunal's reasoning at [52] - [54] of its decision, as well as the 'findings' at [79] of its decision. The Minister further submits the 'applicants have not demonstrated how the findings made by the Tribunal were unreasonable, but rely on the interpretation that the evidence was not fully considered'.[34] If I were to find the Tribunal had erred in the making of their adverse credibility finding in relation to the photographs, the Minister argues that such error is immaterial for three reasons, namely because:[35]

(a) the photographs merely go towards the second applicant being injured.

(b) it could also be observed that the photographs themselves do not necessarily substantiate the applicants' claims even if the explanation were accepted.

(c) the cumulative effect of the evidence found to not be credible by the Tribunal, including the numerous witness statements, the behaviour of the applicants and the evidence provided in the response to the Tribunal's invitation to comment mean that any error in the Tribunal's treatment of the photographs was immaterial.

1. I am generally persuaded by the applicants' submissions on this issue. The Tribunal's reasons do not disclose sufficient engagement with the oral evidence and further explanation proffered by the first applicant for the inconsistencies between her oral evidence and that of her husband in relation to the two photographs in question. I acknowledge the importance of having to read the Tribunal's reasons as a whole and not with an eye keenly attuned to the perception of error. Nevertheless, despite having read those reasons as a whole, and with an eye fully open in search of engagement with the applicant's explanation including by way of any reasonable inferences to be drawn in that regard, I find the Tribunal erred by having failed to give proper, genuine and realistic consideration to that explanation. In reaching that conclusion, it is apparent from a reading of the Tribunal's reasons as a whole that the Tribunal did not properly address the issue of the applicants' credibility and the reliability of the photographic evidence by way reading, identifying, understanding and evaluating the entirety of the oral evidence and subsequent explanation for the second applicant's confusion at hearing. While the Tribunal identified, and was therefore aware of the second applicant's confusion at hearing, the absence of any engagement with the claimed basis for that confusion bespeaks of a failure to understand the further material proffered by the applicants in support of their credibility and the reliability of the two photographs as evidence of the June 2015 incident having occurred.
2. In my view, this failure is indicative of an error which infected the reasoning underpinning the Tribunal's peremptory rejection of the reliability of the photographic evidence and its broader adverse credibility finding in relation to the claims raised by the applicants about the June 2015 incident. This error is material, and gives rise to jurisdictional error, as it significantly undermines the integrity of the Tribunal's ultimate finding that the June 2015 incident did not occur as claimed. That incident was a catalyst for the applicants' departure from Bangladesh and thereby central to their claim for protection. It was a critical or foundational element of that claim for protection.
3. While I appreciate the Minister's suggestion that the photographs merely go towards the second applicant being injured, this was not a reason raised by the Tribunal for not having attributed any probative value to them. Further, unlike the Minister, the Tribunal did not make any observation that the photographs, if accepted, might not necessarily substantiate the claims in relation to the June 2015 incident.
4. I acknowledge the broader adverse credibility and reliability findings in relation to various aspects of the claims and evidence before the Tribunal. I further note the Minister's reliance upon paragraph [55] of Justice Wigney's decision in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 where reference is made to two general propositions relevant to the assessment of materiality in this case. Firstly, jurisdictional error will generally not be established if an irrational or illogical finding or aspect of reasoning was not critical to the ultimate conclusion: Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577; FCAFC 159 at 598-599 [83]-[84]; SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; (2013) 140 ALD 78; FCA 123 at [113]. Secondly, jurisdictional error will generally not be made out where an impugned finding is but one of a number of findings that may have led to the ultimate conclusion: SZRLQ v Minister for Immigration and Citizenship [2013] FCA 566; (2013) 135 ALD 276; FCA 566 at [66]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [64]- [67]. Nevertheless, the Tribunal's rejection of the claimed June 2015 incident was largely derived from the erroneous fact-finding endeavour concerning the two photographs. That incident was a central feature of the claim for protection in this case which bore heavily upon the Tribunal's ultimate rejection of that claim. I am not persuaded the outcome would inevitably have been the same had that particular error not been made. In reaching that conclusion, and while mindful of the imperative not to assume the function of the Tribunal, the circumstances of this case reveal that the two photographs at the centre of the impugned finding were evidence of a quality that would otherwise be highly probative as they were a contemporaneous record of the consequences of the assault arising out of the June 2015 incident. I am therefore satisfied that there exists a realistic possibility that, but for this error, the decision that was made in fact have been different: see ; ; HCA 12 at [7]. Accordingly, Ground 1b. succeeds.

1. By way of this ground, the applicants contend the Tribunal incorrectly or unreasonably applied the meaning of 'well-founded fear' of persecution in s 5J of the Act. The applicants submit the Tribunal incorrectly applied the test by assuming that 'if a person genuinely fears harm in the country where they have lived all their life they must immediately decide to leave that country and immediately seek asylum elsewhere'.[36] In particular, the applicants take issue with the Tribunal having found the delay of a month between obtaining visas for Australia and leaving Bangladesh were actions not demonstrable of persons in the applicants' claimed circumstances.
2. In considering the applicants' explanation for their delayed departure from Bangladesh and lodgment of a protection visa application, the Tribunal found that explanation neither reasonable nor plausible:[37]

... Further, in the Tribunal's view, if the very serious claims that the applicants make about what happened to them in Bangladesh, including in incidents in April 2013 and in June 2015, were true neither the applicant or applicant 2 would have been undecided about whether they would return to Bangladesh after arriving in Australia on 30 July 2015 as they claim they were and they would not have delayed applying for protection in Australia until 6 October 2015. Given the seriousness of the harm they claim to fear in their country if they return there, including the concerns they claim to have about the safety/security of their child, the Tribunal does not consider that either the applicant or applicant 2 gave a reasonable or plausible explanation for being undecided about whether or not they would return to Bangladesh after coming to Australia, and why they delayed applying for protection in Australia; the explanations were variously that they had good jobs in Bangladesh, their life was there, their families were there, it was difficult and painful for them to decide not to return to their country, they talked to family and lawyers, there was a language barrier, it took time to arrange. While the Tribunal understands that these matters are valid concerns for a person deciding whether to leave their country in ordinary circumstances, in the context of the applicants' claims that they have been, and will be, very seriously harmed if they return to Bangladesh and cannot return there for that reason, these matters are not a reasonable explanation, in the Tribunal's view, for delay in, and indecision about, applying for protection from the harm feared when given the opportunity to do so.

1. The Tribunal also found that the applicants' failure to apply for protection in the United Kingdom in July/August 2014 was also inconsistent with their 'very serious' claims that the first applicant was a victim of an attack during the April 2013 incident.[38]
2. Section 5J(1)(a) requires that the person seeking to avail themselves of Australia's protection must demonstrate they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The High Court has held that the phrase 'well-founded fear of being persecuted' contains both subjective and objective elements: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; HCA 62 at [16]. Put simply, the subjective element is met where an applicant demonstrates they possess a state of mind by which they genuinely fear being persecuted. The objective element requires the applicant to demonstrate the existence of a sufficient foundation for that fear, often by way of the presentation of information and verifiable facts about the applicant's personal history and their country of nationality or habitual residence. In my view, the Tribunal's consideration of delay in this case, as part of its assessment of the first and second applicants against the refugee criterion, was entirely appropriate as it went toward a consideration of whether their fear of being persecuted was genuinely held and thereby met the subjective element of the phrase 'well-founded fear of persecution'.
3. The Minister submits, and I agree, that the applicants' pursuit of this ground is premised upon a misconception of the Tribunal's actual findings. In the Minister's view, the Tribunal found that if the applicants' very serious claims were true, they would not have been undecided about whether they would return to Bangladesh after arriving in Australia on 30 July 2015 and would not have delayed applying for protection in Australia until 6 October 2015.[39] Furthermore, the Tribunal embarked upon a similar analysis in relation to the applicants' failure to seek asylum in the United Kingdom,[40] which indicated they did not have a well-founded fear of persecution in July/August 2014 following the claimed January 2013 incident. The Tribunal found the applicants had not provided a reasonable or plausible explanation for the delay and indecision about applying for protection from the harm feared when given the opportunity to do so. These findings were reasonably open to the Tribunal on the evidence before it and the Tribunal's reasoning did not amount to any misinterpretation of the meaning of 'well-founded fear of persecution' in s 5J of the Act.
4. In rejecting the applicants' contention that a proper construction of s 5J of the Act requires that delay in availing oneself of the protection of another country is not a matter to be considered when assessing whether a fear of persecution is 'well-founded', I further note the salient observation of Heerey J in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; FCA 1105 at [11] in which his Honour recognised the legitimacy in considering delay as part of an assessment of whether an applicant's fear of persecution is genuine or deeply held:

...The applicant complained of the Tribunal's taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant's alleged fear of persecution. It is a rational consideration open on the material...

1. Accordingly, no jurisdictional error on the Tribunal's part has been made out by this ground.

1. Therefore, as jurisdictional error has been made out in relation to Ground 1b., the application before this Court succeeds.
2. Finally, as a consequence of:

(a) changes to Ministerial portfolio arrangements and responsibilities following the Federal Election on 23 May 2025, the name of the first respondent is to be amended to 'Minister for Immigration and Citizenship'; and

(b) the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to 'Administrative Review Tribunal'.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[34] Minister's Supplementary Written Submissions filed 16 May 2025, [11].

[35] Minister's Supplementary Written Submissions filed 16 May 2025, [14]-[15].

[36] Applicants' Written Outline of Submissions filed 8 April 2025, [37].