FCX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 872

BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292; [2018] FCAFC 94

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2

DQM18 v Minister for Home Affairs (2020) 278 FCR 529; [2020] FCAFC 110

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

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

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] FCA 12

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

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

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

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

MZAIB v Minister for Immigration & Border Protection [2015] FCA 139

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263

Sujeendran Sivalingam v Minister for Immigration & Multicultural Affairs [1998] FCA 1167

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

SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297; [2007] HCA 26

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

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

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

1. The name of the first respondent be amended to 'Minister for Immigration and Citizenship'.
2. The name of the second respondent be amended to 'Administrative Review Tribunal'.
3. A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 12 September 2018 into this Court for the purposes of quashing it.
4. 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 for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 12 September 2018. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) made on 6 August 2015 to refuse to grant the applicants a Subclass 866 Protection (Class XA) visa (protection visa).
2. The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
3. This case requires the Court to examine the lawfulness of a Tribunal decision in which core elements of the claims for protection were comprehensively rejected on the basis of adverse credibility findings. Those claims were iteratively presented before the delegate and the Tribunal and largely relate to matters of a deeply personal, if not traumatic, nature.
4. The following precis is provided by way of introduction to identify core elements of the claims for protection and foreshadow the issues to be determined:

(a) The applicants are nationals of Bangladesh.

(b) In July 2006, the first applicant, then living in Bangladesh, married a Bangladeshi man who was residing in Australia as the holder of a student visa. Their marriage was conducted by proxy. She later arrived in Australia on 8 December 2006 on a student visa as her husband's dependent.[1] She began living with her husband in a unit located in a suburb of a major Australian city. The second applicant also lived in that unit.

(c) It was claimed that the marital relationship between the first applicant and her husband deteriorated soon after she began living with him because he perpetrated serious acts of domestic violence against her. He slapped her and screamed at her on numerous occasions, sometimes in front of other people who did nothing to protect her. On one occasion, he held her by the neck as he slapped her. He hit and cut her with a fork. She wanted to call the police but did not do so because he told her he would kill her if she did that. He forced her to sell her gold jewellery and used those funds to support his gambling addiction and have 'relations with other women in Kings Cross'.[2] He made her sit an English language proficiency test in 2007 and she thought he did this in order to increase the prospects of approval of a permanent skilled migration visa application that he lodged. He included her in that visa application as his wife and made her accompany him to the Department and the Migration Review Tribunal to support him in that endeavour. That visa application was ultimately refused because he gave information to a skills assessing authority that was false or misleading in a material particular.[3] He returned to Bangladesh in September 2010.

(d) It was further claimed that the first and second applicants had formed an intimate relationship within the crucible of violence that existed at the unit. They feared the first applicant's husband and shared a concern that if they involved the police it would result in the authorities detaining the second applicant as he was, at that time, hiding in the community as an unlawful non-citizen. They eventually confronted the first applicant's husband and left the unit. Following this, they bore two children, the third applicant in June 2011, and the fourth applicant, born in July 2014.

(e) The first and second applicants claimed that they were afraid of returning to Bangladesh because the first applicant's husband would harm them. The first applicant insisted her husband was motivated to harm her and made threatening remarks to her mother and brother in Bangladesh to that effect.

1. While the Tribunal accepted the first and second applicants were in a de facto relationship and that the third and fourth applicants were their biological children, it:

(a) expressed 'doubts about the genuineness of the marital relationship'[4] between the first applicant and her husband;

(b) did not accept that the first applicant 'was subjected to sustained domestic violence at the hands of her husband';[5] and

(c) did not accept that the first applicant's husband conveyed threats to the first applicant via her mother and brother in Bangladesh.[6]

1. By way of the grounds of review specified within the originating application, the applicants raise three issues for determination:

(a) whether the Tribunal failed to afford procedural fairness when assessing claims raised in relation to the nature of the relationship between the first applicant and her husband;

(b) whether the Tribunal's decision was illogical or unreasonable because of the manner in which it made findings that it was likely the first and second applicants would marry in the reasonably foreseeable future and therefore return to Bangladesh with their children and be regarded as a married couple living in a traditional family unit; and

(c) whether the Tribunal failed to consider an integer of a claim whereby the first applicant would be at risk of honour killing if she were to divorce her husband.

1. However, in the course of the hearing before this Court it became apparent the applicants sought to challenge the Tribunal's credibility findings underpinning its rejection of the domestic violence claims. I understood those complaints to advance a ground that the Tribunal's subsidiary findings in respect of the credibility of those claims had been reached in a legally unreasonable manner. To that end, I raised a question as to whether the Tribunal erred when making specific adverse credibility findings and, if so, whether those errors were material such that jurisdictional error could be found to lie.
2. For the reasons that follow at paragraphs [41] to [61], I conclude the applicants' grounds as raised in their originating application do not disclose error on the Tribunal's part. However, at paragraphs [62] to [90], I conclude the Tribunal erred when making various credibility findings about the first applicant's domestic violence claims and that this was material. The application succeeds on that basis.

1. On 19 May 2014, the first applicant submitted a valid application for a protection visa, in which the second, third and fourth applicants were included as members of her family unit. In her protection visa application form, she raised the following claims (reproduced below without alteration apart from changes involving deidentification):[7]

I am the second child of my parents. I have two sisters and one brother. My father was a Government employee. He was a school teacher. He passed away in 2005 from cancer. We spent a lot of money for his treatment. We took him to India for treatment but it failed. We spent almost all his provident fund money. Only my elder sister was married when he died. After that we paid for our expenses from my father's pension. My younger sister and brother were studying at that time. In 2006 my father's close relative proposed his son for me. The boy's name is [name omitted]. He was studying in Australia. His parents are not alive. He was a resident of Chittagong but has no relatives there. He finished his study and went overseas with the help of his aunt. We were married on 22 July 2006. He returned to Australia after one week. I have no guardian who can give required information. I applied for a spouse visa for Australia. At that time all my expenses like application fee and ticket were paid for by my mother and elder sister because [my husband] told me he has got some financial problems. I came to Australia and saw [my husband] was sharing accommodation with [the second applicant].

In December 2007 we went back to Bangladesh and I found out details about [my husband's] first marriage. I was furious and when I inquired from him, he became aggressive and abused me. He said I should shut my mouth. Because I did not have father or brother, I did not know what to do. After we came to Australia, he started suspecting me for speaking to other males. He tortured me physically and mentally. I was very upset. During that time, [the second applicant], helped me a lot and [my husband] started suspecting that that I have relationship with [the second applicant]. During the course of that time, I developed feeling for [the second applicant] and started living with him. [My husband] them left me and now he is in Bangladesh. I fear if I go back to Bangladesh, I will face a real risk of significant harm from [my husband] and fear the conservative Bangladesh conservative society will target me for engaging in illicit relationship and living with another males without marriage. I fear I will be considered as a bad girl and will face a real risk of significant harm including torture, degrading and inhuman treatment in Bangladesh.

I fear I can not get state protection in Bangladesh.

See my detailed statement to follow.

1. By way of a statutory declaration made on 6 December 2014 that was lodged in support of the protection visa application, the first applicant raised detailed claims about the history of her relationship with her husband and the nature of domestic violence she experienced both during the course of that relationship and following its breakdown. She described various incidents and experiences involving economic abuse, verbal abuse, physical violence, threats and coercive control. She further described how, in the face of this abuse, she forged a relationship with the second applicant while her relationship with her mother deteriorated.
2. On 6 August 2015, the delegate refused to grant each of the applicants a protection visa having found they were not persons in respect of whom Australia has protection obligations or family members of any such person. The delegate summarised the first applicant's protection claims as follows (reproduced below apart from necessary deidentification):[8]

Written claims

• [The first] Applicant married [her husband] on 22 July 2006, in Bangladesh.
• The [first] applicant arrived in Australia 8 December 2006 as the dependant of [her husband].
• [Her husband] was sharing accommodation with [the second applicant] at [address omitted]. The applicant moved in with her husband at this address.
• One month after she arrived, [her husband] began to beat her, and she was forbidden to leave the home without him.
• In 2007, her sister in Bangladesh told her that she had heard a rumour that [the first applicant's husband] was also married to another woman. When she approached him about this information, he denied the allegation and he became angry. [The second applicant] also told her that he had heard such a rumour.
• [The first applicant's husband] forced the [first] applicant to give him her gold jewellery, and borrowed money from her mother to buy a property in Bangladesh. When he was asked to pay back the loan, he refused. The relationship with her husband deteriorated.
• In December 2007, they travelled to Bangladesh. During this visit she discovered that he had another wife in Bangladesh. When she confronted him about this, he beat her and admitted that he had another wife that he did not want to leave.
• Her mother discouraged her from breaking the relationship, and they returned to Australia on 21 January 2008. He continued to torture the applicant mentally and physically. In February 2008, he beat her for talking to [the second applicant]. He held her by the neck and slapped her. She wanted to call the police, but feared that [the second applicant] would be detained because he was an unlawful-non-citizen.
• She asked her mother if she could return home to Bangladesh. Her mother told her not to return as it would affect her sibling's life. She discovered that [her husband] was addicted to gambling; and was having relations with other women· in Kings Cross. She decided to return home to her mother, however, her mother said she would not support her if she returned. She stopped speaking to her mother at this time.
• In April 2008, [her husband] hit her with a fork in an argument. He threatened to kill her if she called the police. He started rumours about her and [the second applicant].
• [The second applicant] had witnessed the abusive behaviour of her husband, and was sympathetic and caring about her circumstances. She turned him for friendship and support. The friendship developed into a relationship in 2008.
• The [first] applicant decided to stay with [the second applicant]. In July 2008, she moved into [the second applicant's] room in the apartment. [Her husband] then moved out, and began to live in Kings Cross. Sometimes he would call the applicant to make threatening phone calls, and threatened to report them to the police and/or immigration.
• She heard that [her husband's] Skilled Residence visa application had been refused because he provided false documents to the department. She heard that he returned to Bangladesh in 2010.
• She reconciled her relationship with her mother in 2014. Her mother told her that [her husband] had made threats to kill the [first] applicant if she returned to Bangladesh, because she ruined his plans for permanent residence in Australia. He also spread false rumours among their relatives that she lives like a prostitute and has many boyfriends.
• [Her husband] has friends in Australia who would inform him if they returned to Bangladesh, and she fears he would search for them. She fears that [her husband] will harm her in revenge.
• She fears that if she returns to Bangladesh, she will face serious harm including torture and degrading treatment, and possibly be killed by Bangladesh society and Islamic extremists for having children out of wedlock.
• The police would not protect her because they would view her particular circumstances as a domestic family issue. She would not be able to relocate to another part of Bangladesh with two small children.

1. The delegate did not accept central aspects of the first applicant's narrative on the basis that she was not a credible witness or that any of her claims for protection were credible.[9] The delegate's credibility assessment follows (reproduced below without alteration):[10]

Credibility assessment

Having interviewed the applicant and considered the written information provided, I have a number of concerns in relation to the credibility of the applicant's claims for protection.

I give significant weight to the fact that for the two year period after she claims she separated from her former husband, she continued to pursue a permanent visa as the dependant spouse on his Skilled Residence visa application. Furthermore, she continued to have direct personal contact with her ex-husband up until he departed Australia in early September 2010. I have considered the applicant's explanation that she continued to present herself to the department as the dependant spouse her ex-husband, because he made threats to report her new spouse to the authorities. However, as outlined above, when contradictory material evidence and testimony about the nature of the contact with her ex-husband was put to the applicant at interview, she disavowed her previous testimony on numerous occasions. In the absence of any persuasive testimony, or evidence to contradict material evidence before me, I am unwilling to give the applicant the benefit of the doubt. Therefore, I do not accept that she continued to misrepresent herself to the department as the dependant of her former husband, because he threatened to report her new spouse (MFU I) to the authorities as an unlawful non-citizen.

I also consider that the reasons submitted by the applicant for leaving her marriage to begin a defacto relationship with another man, who at this time also lived in the same household as the husband that she claims had previously subjected her to serious violence, to be an unlikely scenario. I consider that her behaviour does not support the circumstances portrayed by the applicant. In addition, I note that the applicant has not submitted any material evidence in support of her claims. Overall, when I consider the inconsistent, false and misleading testimony of the applicant outlined above cumulatively with the material evidence before me, I am not satisfied that the applicant is a credible witness.

Having considered all of the above matters, I am not satisfied as to the credibility of the applicant and the veracity of her claims. Accordingly I do not accept that any of her claims for protection are credible, or that she genuinely fears being harmed by her ex-husband, family, general society and Islamic extremists in Bangladesh, because she entered into a relationship with a man who is not her husband, and has borne children to him out of wedlock. On the basis of the information before me, my overall view is the purpose of her travel to Australia was influenced by other undeclared factors, and that the applicant manufactured her claims in order to establish the basis of a case to remain in Australia.

1. On 2 September 2015, the applicants applied to the Tribunal for review of the delegate's decision.[11]
2. On 23 March 2018, the applicants' representative provided the Tribunal with: [12]

(a) a submission that contained country information and arguments addressing why Australia owed protection obligations to the first, third and fourth applicants given the risk of harm they faced if they were to return to Bangladesh;

(b) a medical certificate by Dr Helena Berenson of Harold Park Medical Centre dated 1 March 2018; and

(c) further country information relating to violence against women in Bangladesh.

1. On 29 March 2018, the first and second applicants appeared before the Tribunal at hearing with their representative.[13]
2. On 12 April 2018, the Tribunal invited the applicants to comment on, or respond to, information pursuant to s 424A of the Act.[14]
3. On 9 May 2018, and by way of response to the invitation issued pursuant to s 424A of the Act, the representative provided the Tribunal with a statutory declaration made by the first applicant on 7 May 2018.[15]
4. On 16 May 2018, the representative provided the Tribunal with the results of a DNA test, dated 14 May 2018, which confirmed the second applicant is the third applicant's 'genetic father'.[16] This material was provided to the Tribunal to address a concern raised at hearing about the identity of the third applicant's father.

1. On 12 September 2018, the Tribunal affirmed the decision under review to refuse to grant the applicants protection visas.[17]
2. The Tribunal accepted various claims made in relation to the first applicant's family composition including:

(a) that the first applicant had been married to her husband who had departed Australia on 7 September 2010; and

(b) that the first and second applicants were in a de facto relationship and biological parents of the third and fourth applicants.

1. However, the Tribunal rejected the first applicant's domestic violence claims. At paragraphs [75]-[80] of its decision, the Tribunal gave five reasons upon which it grounded its rejection of this central set of claims:[18]

(a) First, the first and second applicants gave inconsistent evidence regarding several matters, being: whether a specific individual was living in the unit at the time of the first applicant's arrival and had witnessed the domestic violence, whether the applicants had ever shared a room in the unit, and whether they moved out of the unit before the first applicant's husband did.

(b) Secondly, the claims were implausible because if the second applicant had witnessed the domestic violence over a period of 18 months and had 'develop[ed] feelings' for the first applicant, he would have called the police, encouraged the first applicant to call the police or given her advice and assistance to find domestic violence support services. It did not accept the explanation given for the second applicant not having done so 'solely because of his own fear of not having his unlawful immigration status exposed'.

(c) Thirdly, the Tribunal had concerns about whether the 'marriage relationship' between the first applicant and her husband was ever 'genuine' because the first applicant gave inconsistent evidence in relation to whether her husband was physically present at their marriage. It did not accept the explanation for this discrepancy was that 'she may have mistaken his visit with the honeymoon trip following the marriage...and that a significant period of time had passed and her memory was not so good'.

(d) Fourthly, because the first applicant's support of her husband's permanent skilled migration visa application 'contradicts her claims that they had separated in July 2008 and he was violent towards her and she was afraid of him'. It did not accept the explanation that she continued to support her husband's visa application and 'present as his wife in this period under duress due to blackmail threats by him to expose [the second applicant's] unlawful status'.

(e) Fifthly, there was no evidence of the husband having informed the Department of the second applicant's unlawful status at any time between 2008 and 2014 which undermined the claim that the first applicant's husband 'harbours vindictive or hostile intent towards the [first] applicant or the [second] applicant'.

1. Furthermore, at paragraphs [82]-[83] of its decision, the Tribunal rejected the first applicant's claim that her husband had been contacting her mother in Bangladesh and told her that the first applicant had been 'doing bad things in Australia' and that he would kill the first applicant if she returned to Bangladesh. It also rejected the claim that her husband had threatened her brother. The Tribunal rejected these claims because: [19]

(a) the first applicant's mother or brother did not complain to the police about the threats;

(b) there was no corroborative evidence to support the claim;

(c) of their belated presentation, having rejected the explanation given for why the first applicant only learnt of these matters from her mother in 2014 which was four years after her husband's return to Bangladesh in 2010; and

(d) it had earlier made adverse credibility findings against the first applicant and rejected her claims that she and her husband were in a genuine relationship and that he was violent towards her in Australia.

1. On this basis, the Tribunal did not accept that the first applicant's husband had any interest, adverse or otherwise, in the applicants upon their return to Bangladesh and found they did not face a real chance of serious harm from him for any reason.[20] Further, the Tribunal did not accept that any of the applicants would face a real chance of serious harm from the first applicant's family and/or the Islamic community because the first and second applicants were in a de facto relationship and had children out of wedlock.[21]
2. The Tribunal determined the applicants did not have a well‑founded fear of persecution and, for the purpose of the complementary protection criterion, did not accept there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh, that there was a real risk they would suffer significant harm.
3. Accordingly, the Tribunal concluded the applicants did not satisfy ss 36(2)(a) or 36(2)(aa) of the Act and, as a result, the applicants were unable to satisfy the criteria within ss 36(2)(b) or (c) of the Act.[22] On that basis, the Tribunal affirmed the decision not to grant the applicants protection visas.[23]

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; [2010] HCA 16 (SZMDS) and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] 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; [2003] HCA 22 at [31] per Gleeson CJ, Gummow and Kirby JJ. As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken is reasonable, reflective and fair. There are special considerations in relation to asylum seekers. In Sujeendran Sivalingam v Minister for Immigration & Multicultural Affairs [1998] FCA 1167 per O'Connor, Branson and Marshall JJ, the Full Court recognised that:

refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

1. 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 (EVI19) 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) 258 FCR 175; [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [11] per Allsop CJ.
2. 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. In SZMDS, Crennan and Bell JJ explained at [130]-[131] that legal unreasonableness arises where illogicality or irrationality has affected a decision whereby:

130. ....the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, 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. In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles at [52] and [54]-[56]:

52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality or irrationality must be shown, "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions". And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

...

54 ... The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings "on the way" to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]- [62].

55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal's decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, 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: Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577 at 598-599 [83]- [84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship [2013] FCA 566; (2013) 135 ALD 276 at 291 [66]; at [64]-[67].

56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 at 455-456 [14]- [15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal's findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

1. In BUX17 v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCA 1510, Raper J at [18] articulated the need for an applicant to overcome a high bar when asserting a decision is illogical, and thereby legally unreasonable, in the following terms:

A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, or if the decision was simply not open on the evidence or there is no logical connection between the decision and the inferences or conclusions drawn: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135] per Crennan and Bell JJ. Where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally or factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92] per Wigney J.

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. Such variations 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.
2. In AVQ15 v Minister for Immigration and Border Protection (2018) 216 FCR 83; [2018] 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. The formulation or scope of what may be understood to be 'implausible' was encapsulated by the Full Court in BQQ15 at [56]:

A finding that an alleged event is implausible is ordinarily a finding that it is inherently unlikely to have occurred; adopting the language of the High Court in WET040 (No 2), the event does not accord with the probabilities of ordinary human experience. It is not necessarily a finding that that event is beyond human experience of possible occurrences in the sense that it could not have occurred: the formulation tends to overstate what is ordinarily meant by "implausible".

1. Where a decision-maker finds an applicant's claim to be 'implausible', that finding must have a probative basis and not be the product of speculation or conjecture: see DQM18 v Minister for Home Affairs [2020] FCAFC 110; [2020] 278 FCR 529; FCAFC 110 (DQM18) per Bromberg and Mortimer JJ at [52]-[58]; EVI19 at [73]-[81]. Put simply, there must be an evidentiary foundation for the decision-maker's finding as to implausibility, unless of course the finding can be said to be based on the probabilities of 'ordinary human experience'. For such a finding to be soundly based on the probabilities of 'ordinary human experience', the decision-maker must be equipped by probative material to assess what 'ordinary human experience' would be in the circumstances of a particular case, taking into account, for example, the cultural, geographical and other factors that bear upon the fact-finding exercise: see, for example, DQM18 at [58], EVI19 at [81]. Otherwise, the finding will be based on an unwarranted assumption: see BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 (BOH17) at [6]-[7] per Perram J.

1. Unwarranted assumptions made by a decision-maker and relied upon as part of the fact-finding task give rise to error. Their impact has been described as having compromised the Tribunal's reasoning process by way of giving rise to the making of an illogical or irrational finding that infects the Tribunal's ultimate conclusion. The Full Court in BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292; [2018] FCAFC 94 (BZD17) at [36] per Perram, Perry and O'Callaghan JJ described the manner in which unwarranted assumptions give rise to error in the following terms:

... Similarly, "[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it": SZVAP v Minister for Immigration & Border Protection (2015) [2015] FCA 1089; 233 FCR 451 (SZVAP) at [22] (Flick J) (citing WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437; (2002) 194 ALR 676 at [54] (Lee and Nicholson JJ)); see also eg SZLGP v Minister for Immigration & Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [34] -[37] (Logan J). Unwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence: see eg DAO16 at [45] (the Court).

1. In BOH17 at [7]-[8], Perram J further exposed the jurisprudential basis upon which unwarranted assumptions give rise to error:

7. On the current state of the authorities, it seems to me that the better view is that there is no freestanding ground of unwarranted assumptions. However, the making of unwarranted assumptions as part of a credit finding may be reviewed on rationality grounds (DAO16) or because the decision maker has failed duly to consider the question raised by the material (WAGO and BZD17). For myself, the former test is easier to apply in practice in the sense that it appears less conclusory. There are various extant formulations of this ground. The Full Court in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] described it this way:

Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is "whether a decision-maker could reasonably come to the conclusion" reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.

(See also Minister for Immigration, Citizenship and Multicultural Affairs v JSMJ [2023] FCAFC 77 at [39])

8. Thus, a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. In this case, therefore, this means that the question for decision is whether the Tribunal's impugned credit findings were ones which could reasonably be arrived at or whether they lacked an evident and intelligible justification.

1. By an application filed on 2 October 2018, the applicants seek judicial review of the Tribunal's decision. The applicants raise three grounds within their application (reproduced below without alteration apart from necessary deidentification):
   1. The Tribunal's decision is infected with a legal error because the Tribunal failed to alert the applicant that it has concern in an issue which the Tribunal accepted during the hearing.

Particulars

The tribunal noted in its decision that it has doubts about the genuineness of the marriage relationship. On the other hand, during the Tribunal hearing and in its invitation to hearing, the Tribunal noted or at least implicitly advised that the primary applicant's marriage with [her husband] was genuine one because the Tribunal advised it may conclude that the applicant's second child was the child of [her husband]. As a result of that, the applicant formed the view that the Tribunal had no concerns of the genuineness of the marriage. However, in its decision record, the Tribunal noted that it has doubts about the genuineness of the marriage. The applicants were not advised that it was an issue and was not invited to comment or respond.

1. The Tribunal decision is illogical and unreasonable.

Particulars

1. The Tribunal noted that the applicants are likely to marry in the reasonably foreseeable future. However, the Tribunal failed to consider whether the applicants would be able to apply for a divorce either under the Australian law or under the Bangladesh law without the contact details of the primary applicant's husband. The Tribunal also failed to consider the following issues or questions:

   1. The time period a primary applicant would be able to get divorce.

   2. Whether the applicants can seek divorce without presenting themselves in Bangladesh if the primary applicants want to apply for divorce from Bangladesh.

   3. Whether seeking divorce in Australia will be validated or accepted by the Bangladesh authorities if the primary applicant wants to apply for divorce from Australia?

   4. How long the divorce proceeding will take either applying from Australia or in Bangladesh.

   5. If applies from Bangladesh, whether the primary applicant needs to establish a fault on the part of her ex-husband. That is whether the divorce proceeding in Bangladesh is fault basis or non-fault basis and if it is fault basis by raising a fault basis reason against her ex-husband in the Bangladesh courts whether the primary applicant would face any harm.

   6. Since the primary applicant has children and whether either Australian Courts or Bangladesh courts will grant divorce unless they are satisfied whether the children are not from the relationship. The Tribunal failed to consider this aspect to form a view whether the primary applicant can get divorce from her ex-husband and marry her current partner in a foreseeable future.

   7. The Tribunal noted that primary applicant would not return as a single mother since she would return with her partner. The Tribunal failed to consider that partner or de facto relationships are recognized in Bangladesh and if it is not recognized, then the primary applicant would be still considered as a single mother and would face a real risk. Therefore, the Tribunal conclusion is illogical and unreasonable.

   8. The tribunal noted in its decision para 103 that since the applicants have indicated their intention to marry and the Tribunal is satisfied that they will be seen as a married couple living in a traditional family unit. It is submitted that this conclusion has no evidentiary basis and unreasonable. The reason is, at least at the time of arrival and until the primary obtained divorce and sorting out the issues including custody with her ex-husband and undertaking further DNA test to establish the paternity with her partner and then apply for marriage, it will take significant period of time and until such time, they will not be seen as married couple living in a traditional family unit and will be considered as living together relationship which is not acceptable by the Bangladeshi society. As such the Tribunal conclusion is illogical and unreasonable.

2. The Tribunal failed to consider integer claim.

Particulars

The Tribunal failed to consider the applicants claim namely fear of honour killing due to seeking a divorce even from an abusive husband. The applicants' representative in their submission dated 23 March 2018 submitted the above claim and the Tribunal overlooked and failed to consider the above claim.

1. Despite having been afforded the opportunity, the applicants did not file an amended application or written submissions prior to the hearing. Nevertheless, the first applicant made various submissions at hearing before me and by way of a document provided to the Court and the Minister on 22 January 2025. Where relevant, I address those submissions below.

1. By ground 1, the applicants contend the Tribunal failed to notify or advise them that it had doubts about the genuineness of the relationship between the first applicant and her husband. At hearing, the applicant did not wish to elaborate upon this ground.
2. This ground, when broadly read, reveals an argument whereby the applicants seek to categorise 'the genuineness of the relationship between the first applicant and her husband' as an issue arising in relation to the decision under review which the Tribunal was required to identify to them as a critical issue for determination. Insofar as that contention is made, I disagree with the characterisation of this particular matter as an issue.
3. The Tribunal's focus on the genuineness of the relationship between the first applicant and her husband was part of a broader inquiry in relation to the credibility of the first applicant's claims in relation to the nature of that marital relationship, the narrative of domestic violence she suffered while her husband was in Australia and the subsequent threats made towards her through her family members in Bangladesh. The issue on the review related to the credibility of the claims raised and the applicants were aware of various credibility concerns surrounding the first applicant's marital circumstances, and other familial relationships, by way of the reasons proffered in the delegate's decision. Importantly, the Tribunal made the applicant aware of its numerous credibility concerns, including in relation to the claims raised about the marital circumstances of the first applicant, by way of its challenges to the evidentiary material provided in support of claims relating to the commencement, volatility and cessation of that particular relationship and by way of other matters raised in its invitation issued pursuant to s 424A of the Act. There can be no doubt the applicants were aware that credibility of the detailed claims made in relation to the first applicant's relationships with her husband and the second applicant was an issue and the Tribunal provided the applicants with ample opportunity to address the issue of credibility insofar as it related to those claims.
4. By way of submissions filed on 3 December 2024, the Minister submits, and I agree, that insofar as the applicants contend the Tribunal was required to provide the first applicant with advance notice of its thought processes, the evaluative conclusions drawn by the Tribunal in relation to the evidence and claims are not 'information' within the meaning of ss 424AA(1)(a) and 424A(1)(a)of the Act. The Tribunal is not obliged to give advance notice of its thought process, including 'the existence of doubts, inconsistencies, or the absence of evidence': see SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297; [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
5. Finally, there is no evidence before the Court which supports the complaints raised in the particulars. A fair reading of the Tribunal's reasons as a whole reveals that its doubts about the genuineness of the first applicant's marriage was not solely founded upon conclusions it might draw about the identity of her children. Instead, the reasons reveal this doubt was also based upon the first applicant's inability to recall a detail as significant as whether or not her husband was present in person when they married in circumstances where documentary evidence revealed they had a proxy marriage.
6. Accordingly, no jurisdictional error arises on this basis.

1. By ground 2, the applicants contend the following Tribunal findings were illogical or unreasonable:

(a) the first and second applicants were likely to marry in the reasonably foreseeable future;

(b) the first applicant would not return to Bangladesh as a single mother as she would return with her partner, being the second applicant; and

(c) the first applicant and second applicant would be seen in Bangladesh as a married couple living in a traditional family unit.

1. The Minister submits, and I accept, the Tribunal's findings were reached in a manner open to it on the available material. The complaints raised by the applicants are without evidentiary foundation, mischaracterise the Tribunal's reasons and go no further than an invitation to this Court to engage in impermissible merits review. In most instances, the complaints seek to reconstruct and reagitate the applicants' case without properly acknowledging the nature of the Tribunal's consideration based upon the evidence, claims and submissions before it.
2. In relation to finding challenged by ground 2(a), the Tribunal recorded in its reasons that the first and second applicants had given evidence of their willingness and intention to get married in the future. The Tribunal further noted the first applicant told the Tribunal she was in the process of seeking a formal divorce from her husband and had commenced that process by way of 'filling out some forms for this purpose recently'.[24] On that basis, the Tribunal found the first and second applicant are likely to marry in the reasonably foreseeable future.
3. There is no evidence before the Court which suggests that the 'issues or questions' raised in sub-particulars (i) to (vi) had been brought to the Tribunal's attention during the review application process in order to consider as part of any fact-finding process or to determine a particular question. There were no submission before the Tribunal which raise those particular 'issues or questions' such that they had to be addressed or determined as part of the review application process. Further, those 'issues or questions' do not squarely arise out of the material and thereby did not warrant the Tribunal's consideration or further inquiry.
4. The findings challenged by ground 2(b) and 2(c) relate to similar matters and were reached following consideration of largely the same evidentiary material. In relation to the finding challenged by ground 2(b), having found the first and second applicants would marry once they are legally able to do so, the Tribunal found the first applicant would not be returning to Bangladesh alone or as a single woman with children. It found she would be returning to Bangladesh with the remaining applicants 'as a family unit'.[25] It was open to the Tribunal to reach such a finding on the available material. On that basis, this aspect of the ground is misconceived.
5. In relation to the finding challenged by ground 2(c), the Tribunal accepted the first and second applicant would be unable to live openly as a de facto or common law couple as they have been doing so in Australia. It also accepted the first and second applicants would face considerable pressure to marry if they were unmarried in Bangladesh. However, having found the first and second applicants were likely to marry in the foreseeable future, the Tribunal was satisfied the first and second applicants would be seen as a married couple living in a traditional family unit when they return to Bangladesh.[26] In reaching that finding, the Tribunal considered:

(a) the first applicant's steps towards divorcing her husband, noting the evidence that 'financial' constraints and the first applicant being 'very stressed previously' had impeded the divorce to date;[27] and

(b) the circumstances and marital intentions of the first and second applicants, noting the evidence of their willingness and intention to marry.[28]

1. Therefore, an argument that the Tribunal failed to properly consider, had overlooked or had otherwise improperly rejected material when reaching this particular finding fails at a factual level. The Tribunal's finding that the first applicant's divorce and re-marriage would occur was reasonably open to it on the material before it. The applicants were unable to explain how the Tribunal's assessment of the available material gave rise to it making this particular finding in a manner that was legally unreasonable. Having reviewed the claims, submissions and evidentiary material before the Tribunal in relation to these matters, I agree with the Minister that the Tribunal's assessment of these particular claims gave rise to findings that were open to it on the evidence, and the resultant findings were neither illogical nor unreasonable.
2. Accordingly, no jurisdictional error arises on this basis.

1. By ground 3 the applicants contend the Tribunal failed to consider the first applicant's claim that she feared honour killing for reason of seeking, or having sought, a divorce from an abusive husband. The applicants contend that this claim was raised with the Tribunal by way of the representative's submission dated 23 March 2018.
2. I agree with the Minister's submission that this ground fails on the facts. The Tribunal's consideration of the claim in relation to honour killings was subsumed within the Tribunal's consideration of the applicant's claim to fear harm from the Islamic community generally. In summarising the applicant's claims and evidence, in particular the submission provided to the Tribunal on 23 March 2018, the Tribunal relevantly stated at [25]:

The submission argues that the applicant is at risk of harm from various actors, her ex husband, his family, extended family and Islamic extremists and its agents and refers to various kinds of harm including honour crimes/acid crimes.

1. In recounting the first applicant's oral evidence given at the Tribunal hearing, the Tribunal, at [51], noted the first applicant's reiteration of her fear of harm from the Islamic community.
2. Having considered the first applicant's claims and evidence, the Tribunal did not accept that the applicants would face any harm from the first applicant's husband, the Islamic community or their families because the first and second applicant were in a de facto relationship in Australia and had their children out of wedlock. Accordingly, the first applicant's claim that she would face harm in the form of an honour killing for reason of seeking a divorce from her husband was considered, and ultimately rejected, by the Tribunal.
3. Accordingly, no jurisdictional error arises on this basis.

THE TRIBUNAL'S ASSESSMENT OF THE DOMESTIC VIOLENCE CLAIMS

1. Having regard to the Court's obligations towards self-represented litigants as outlined by Mortimer J in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58]- [77], [100] and [112]-[113], I have scrutinised the application, the materials before the Tribunal and the Tribunal's decision to identify any jurisdictional error. Consistent with those obligations, I have endeavoured to identify and beneficially construe any potential arguments the applicants sought to advance in relation to the Tribunal's decision and remain astute to possible bases of jurisdictional error outside of those explicitly raised.
2. At the hearing before me on 17 December 2024, the first applicant made various submissions that went to the merits of her claims in relation to her marriage and the domestic violence she had suffered. She insisted those claims were true and took issue with the Tribunal's consideration of those claims. On that basis, I raised with the Minister's representative the potential of a jurisdictional error arising from the Tribunal's credibility assessment of the first applicant's domestic violence claims. At the close of the hearing, I ordered:

(a) the Minister to file and serve supplementary written submissions, on or before 13 January 2025, in relation to the issue raised at hearing about the Tribunal's credibility assessment; and

(b) the applicants to file and serve written submissions in reply, on or before 23 January 2025.

1. The Minister's representative provided brief oral submissions at hearing on this issue, noting the applicant's narrative in relation to domestic violence was rejected on the basis of many adverse credibility findings. In relation to the possibility of the Tribunal having erred when finding at paragraph [79] of its decision that the applicant had acted in a 'self-serving' manner by remaining a part of her husband's permanent skilled migration visa application and this suggested that domestic violence had not occurred within that relationship, the Minister's representative noted that if any error were to be found it would not be material in the sense described by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] FCA 12 (LPDT).[29]
2. By way of post-hearing written submissions filed on 13 January 2025, the Minister summarised relevant aspects of the Tribunal's decision in relation to the rejection of the first applicant's domestic violence claims and raised various submissions in support of an argument that the Tribunal had not acted in a legally unreasonable manner in rejecting those claims. Where relevant, those submissions are addressed below. For present purposes, it is apposite to set out below the Minister's conclusive arguments set out paragraphs [12] and [13] of these post-hearing written submissions:

12. The Minister submits that the Tribunal rejected the applicant's claims that she was the victim of domestic violence on the basis of comprehensive adverse credibility findings. Such findings are matters for the Tribunal to determine: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 at [67]- [68] per McHugh J. While credibility findings may reveal error, the Minister submits that the Tribunal's findings in this case were open to it for the reasons it gave: cf. CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [38] per McKerracher, Griffiths and Rangiah JJ. While the Tribunal could have provided more detailed reasons for its findings at paragraph [79], that does not result in jurisdictional error.

13. Moreover, the Tribunal's finding that its concerns relating to the former husband's skilled visa application "adds to the Tribunal's concerns" demonstrates this issue played only a minor role in the Tribunal's findings that the applicant's claims that she had been subjected to domestic violence were not credible. It was by no means a "foundational element" or "critical" to the Tribunal's decision and the Tribunal's other findings were sufficient to sustain its decision: Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [71] per Wigney J.

1. By way of correspondence sent to the Minister's representative and the Court on 22 January 2025, the first applicant made a number of submissions which served to agitate the merits of the case but failed to advance any discernible argument as to how the Tribunal had acted in a legally unreasonable manner when forming any particular adverse credibility findings or ultimately deciding the review against the applicants on the basis of such findings. Nevertheless, it is apparent from this correspondence that the first applicant takes issue with the Tribunal's disbelief of her domestic violence claims.

1. At paragraphs [75]-[80] of its decision, the Tribunal set out a series of adverse credibility findings. These subsidiary findings formed the foundation for its rejection of the first applicant's claims of domestic violence. The Tribunal identified five distinct bases underpinning its ultimate conclusion. I now proceed to examine each of those bases in turn, with a view to determining whether the Tribunal fell into error in making any particular credit finding.

First basis - inconsistencies between the evidence of the first and second applicant

1. At paragraph [77] of its decision, the Tribunal identified the first and second applicants gave inconsistent evidence at hearing of:

(a) whether a particular man was living in the unit when the applicant arrived in Australia and had witnessed the domestic violence;

(b) whether they had ever shared a room at the unit before moving out; and

(c) whether they moved out of the unit before the first applicant's husband moved out.

1. The Tribunal then summarised the explanation given for the inconsistencies by way of noting the first applicant's declaration that the second applicant was 'under a lot of stress and has memory issues and his responses were not accurate'. It also recorded the first applicant's declaration 'that these are minor inconsistencies and should not affect the outcome of the matter'. This is a brief but accurate summation of the first applicant's submissions and evidence in response to the concerns raised about these inconsistencies.
2. At paragraph [78] of its decision, the Tribunal found that the inconsistencies related to 'material aspects of the evidence'.
3. The Tribunal's reasons do not disclose any consideration of the first applicant's claims or evidence concerning the violence she alleged to have suffered at the hands of her husband while he was in Australia. Rather, the first basis of the Tribunal's credibility assessment was confined to an evaluation of whether the first and second applicants' respective accounts of certain residential arrangements were consistent.
4. While it is open for the Tribunal to have found that the first and second applicants gave inconsistent evidence on these matters, the Tribunal's reasons do not engage with the explanation provided for the inconsistencies in order to then determine their significance and the weight to be attributed to them when rejecting the claimed narrative of domestic violence: see ASB17 at [43]; AVQ15 at [28]. The failure to grapple with the explanation and provide more detailed reasons as to the significance of these inconsistencies reveals a gap in the Tribunal's reasons. I am unable to discern from the reasons why the Tribunal determined these inconsistencies to be of any particular significance. Furthermore, having regard to the material before the Tribunal, including the detailed claims advanced by the first applicant concerning multiple and varied incidents of domestic violence, her vulnerability, and the conduct of her husband towards her, it is also not apparent from the Tribunal's reasons why the identified inconsistencies were regarded as relating to 'material aspects of the evidence'. Nor is it clear how, in the context of the detailed claims of violence that were recited in the decision, those inconsistencies were assessed as sufficiently significant to warrant an adverse credibility finding.
5. While cognisant of the imperative to refrain from engaging in merits review, the absence of reasons detailing the significance and weight attached to these inconsistencies necessitates some consideration of whether the Tribunal's reliance upon them when undertaking the fact-finding task was legally unreasonable. In my view, the inconsistencies relate to factual matters concerning who resided at the unit and the sequence in which parties vacated that unit. These are objectively minor facts and peripheral when considered against the broader narrative of domestic violence consistently propounded by the first applicant. It is difficult to understand why the Tribunal regarded these matters to be significant when other critical claims made in support of that narrative were acknowledged in the decision but otherwise unaddressed.
6. Accordingly, the absence of reasons on these matters, particularly insofar as they serve to elucidate the Tribunal's assessment of the significance of these inconsistencies and the weight attributed to them as part of its overall credibility assessment, suggests a failure on the part of the Tribunal to appreciate the particular nature of the credibility assessment task, or to perform it reasonably and fairly. In one sense, this may well amount to a constructive failure to exercise jurisdiction. However, I regard the error is better characterised as one where a credibility finding is impugned because the Tribunal's reasoning process is illogical taking into account the number, variety and detailed nature of other critical claims advanced in support of the domestic violence narrative before the Tribunal.

Second basis - the second applicant's inaction in response to the violence

1. At paragraph [78] of its decision, the Tribunal rejected the domestic violence claims because it had formed the view that if the second applicant had witnessed the domestic violence over a period of 18 months and had 'develop[ed] feelings' for the first applicant, he would have called the police, encouraged the first applicant to call the police or given her advice and assistance to find domestic violence support services. In taking that view, the Tribunal attributed the second applicant with 'knowledge of where and how [the first applicant] may be able to seek assistance' because he had lived in Australia 'for many years' and had 'considerable experience with the legal system having applied for and appealed against his protection decision a number of times'.
2. The Tribunal recorded the explanation for the second applicant not acting in such a manner was that he feared 'having his unlawful immigration status exposed'. It did not accept this explanation as 'plausible or credible'.
3. Again, the Tribunal's decision does not disclose any reasoning as to why it rejected this explanation. It is difficult to understand how the Tribunal rejected that explanation as neither plausible nor credible when the evidentiary material before the Tribunal regarding the second applicant's unlawful non-citizen status lent support to the explanation.
4. A review of the Tribunal's reasons reveals the Tribunal having made two unwarranted assumptions when reaching this particular finding. First, the Tribunal assumed that individuals who have resided in Australia for an extended period, have been refused a protection visa, and have sought review of that decision, would possess sufficient familiarity with the Australian legal system to know how and where to refer victims of domestic violence to appropriate authorities and support services. Secondly, it assumed that unlawful non-citizens, who are themselves subject to immigration detention, would nonetheless be willing to encourage another person - toward whom they have close emotional ties and who has experienced domestic violence - to engage with police, despite the inherent risk that such engagement could result in detection by immigration authorities and subsequent detention. There was no evidentiary basis for either of these assumptions. In that respect, the assumptions were unwarranted.
5. To the extent that the finding might be said to be based on the probabilities of 'ordinary human experience', there was no probative material to assess what 'ordinary human experience' would entail in this case. For example, the Tribunal made no reference to evidence or other material before it which informed its 'understanding' of the second applicant's knowledge of domestic violence support and referral services and incident reporting avenues. By way of further example, the Tribunal's reasons are bereft of any probative material to support its 'understanding' of the degree to which unlawful non-citizens in Australia who fear immigration detention and removal would be willing to engage with the police to support a loved one experiencing domestic violence.
6. In my view, the credibility finding was reached in an illogical manner for reason of the Tribunal also having relied upon two unwarranted assumptions in its reasoning process. The making of these unwarranted assumptions as part of the Tribunal's credit finding reveals an illogicality in the reasoning process. These assumptions are without evidentiary foundation and, in my view, not ones which a reasonable decision maker could make. On that basis, this credit finding lacks an evident and intelligible justification: see BOH17 at [8], citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; [2018] 264 CLR 541; HCA 30 at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ.

Third basis - an inconsistency in the first applicant's evidence about her marriage

1. At paragraph [78] of its decision, the Tribunal noted that part of its reason to reject the claimed domestic violence narrative was its concern about whether the 'marriage relationship' between the first applicant and her husband was ever 'genuine'. Its doubts, detailed at paragraph [75] of its decision, arose because the first applicant gave inconsistent evidence in relation to whether her husband was physically present at their marriage in 2006. It did not accept the explanation for this discrepancy was that 'she may have mistaken his visit with the honeymoon trip following the marriage...and that a significant period of time had passed and her memory was not so good'.
2. It was entirely open for the Tribunal to have found the first applicant gave inconsistent evidence on this matter. The Tribunal's reasons reveal that it engaged with the explanation provided. However, the Tribunal's reasons do not reveal any assessment of the significance of this inconsistency and the consequential weight attributed to it as part of its rejection of the claimed narrative of domestic violence: see ASB17 at [43]; AVQ15 at [28].
3. More importantly, the Tribunal's reasons do not reveal why it regarded this particular inconsistency to have any bearing upon whether domestic violence had occurred. Indeed, the absence of reasons in that regard bespeaks of a want of logic in the making of this particular credit finding. It is unclear what the Tribunal meant by 'genuine relationship' in this context and therefore difficult to discern why the absence of such a 'genuine relationship' logically gives rise to a conclusion that the claimed narrative of domestic violence should be rejected. It is not for the Court to hypothesise, infer or somehow divine what the Tribunal meant by 'genuine relationship' and supply a rationale where none is given. The absence of clarity in this respect amounts to a missing link in the chain of reasoning necessary to support the adverse credibility finding. In my view, this renders the Tribunal's conclusion legally unreasonable.

Fourth basis - the first applicant's participation in her husband's permanent skilled migration visa application

1. At paragraph [79] of its decision, the Tribunal expressed its view that the first applicant's support of her husband's permanent skilled migration visa application 'contradicts her claims that they had separated in July 2008 and he was violent towards her and she was afraid of him'. It did not accept the explanation that she continued to support that visa application and 'present as his wife in this period under duress due to blackmail threats by him to expose [the second applicant's] unlawful status'. It rejected that explanation for the following reasons:

It is not supported by the evidence before the Tribunal. She provided no explanation and it is not apparent from the material that the applicant's participation in the application increased the chance of success of [her husband's] application (although the Tribunal acknowledges she gave oral evidence to the MRT to support his credit.). On the other hand, the success of his application would lead to a clear benefit for her if she was his dependent spouse. This suggests she had a self-serving motive to continue to cooperate in the manner that she did.

1. Having reviewed the material before the Tribunal, I disagree with the Minister's submission that these findings were open to it on the evidence.
2. First, it was readily apparent on the material that the applicant's participation in her husband's permanent skilled migration visa application, beyond giving oral evidence to the Migration Review Tribunal to support his credit, increased the prospects of success of that application. It is clear that this finding was made without reference to relevant aspects of the legislative scheme which supported the first applicant's account - namely, that her English language proficiency and qualifications were relevant to the allocation of an additional five points in support of her husband's permanent skilled migration visa application.[30] Indeed, at paragraph [22] of its decision, the Tribunal recorded a summation of the first applicant's evidence that her husband had married her because she had a Bachelor's degree and spoke English which would allow him to 'get more points to apply for permanent residency'.[31] The evidentiary record also reveals the first applicant's claim that she undertook an English language proficiency test in early 2007 to support her husband's permanent skilled migration visa application.[32] Nevertheless, when making its credit finding, the Tribunal did not consider that evidence and how it bore upon the broader domestic violence narrative. A failure to consider that aspect of the evidence amounts to a failure to consider an integer of a claim: see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [63]. That failure was material as it gave rise to the Tribunal's misunderstanding of the importance of the first applicant's participation in her husband's permanent skilled migration visa application and the broader claims in relation to how that influenced her husband's controlling behaviour and violent conduct towards her during the processing of that application and following its refusal.
3. Secondly, the Tribunal observed that the first applicant's participation in the permanent skilled migration visa application was based upon a 'self-serving motive'. The Minister submits that 'this is an accurate observation and it was open to the Tribunal to consider that the applicant had an incentive to participate in the application'.[33] I do not accept the Minister's submission. In my view, the Tribunal's credibility finding was reached in an illogical manner. The Tribunal appears to have proceeded on the assumption that domestic violence cannot occur in circumstances where the victim may derive a benefit from maintaining the appearance of a continuing marital relationship with the perpetrator. That assumption is not only unsupported by evidence but fails to engage with the complexities of the domestic violence dynamics propounded by the applicant in her evidence. It reflects a flawed premise and undermines the logical foundation of the Tribunal's reasoning. Again, the assumption is without evidentiary foundation and, in my view, not one which a reasonable decision maker could make. It follows that this credit finding lacks an evident and intelligible justification: see BOH17 at [8].

Fifth basis - absence of evidence indicating the first applicant's husband having reported the second applicant to the Department between 2008 and 2014

1. Fifthly, at paragraph [80] of its decision, the Tribunal observed there was no evidence of the first applicant's husband having informed the Department of the second applicant's unlawful non-citizen status at any time between 2008 and 2014. It reasoned that this undermined the claim that the first applicant's husband 'harbours vindictive or hostile intent towards the [first] applicant or the [second] applicant'.[34] In my view, this particular credit finding was open to the Tribunal. The finding was logically based upon the available material and went to a core element of the claimed narrative of domestic violence. Accordingly, I do not find any error arising on this basis.

1. For the sake of clarity and convenience, I set out below a concise summary of the conclusions reached in respect of the five bases upon which the Tribunal rested its ultimate rejection of the domestic violence claims:

(a) First basis: error established due to the Tribunal's failure to assess the significance of the inconsistencies between the evidence of the first and second applicants in relation to objectively minor and peripheral matters leading to an illogical finding.

(b) Second basis: error established due to the Tribunal's unwarranted assumptions leading to an illogical finding in relation to the second applicant's inaction in response to the claimed violence.

(c) Third basis: error established due to the Tribunal's failure to assess the significance of the inconsistency in relation to the applicant's evidence about her marriage, and provide a logical basis upon which to attribute weight to this matter as part of its rejection of the claimed narrative of domestic violence.

(d) Fourth basis: error established due to the Tribunal having failed to consider an integer of the applicant's claim, as well as having made an illogical finding based upon an unwarranted assumption about the first applicant's participation in her husband's permanent skilled migration visa application.

(e) Fifth basis: no error established.

1. In my view, the Tribunal's errors in relation to four of the five bases underpinning its rejection of the domestic violence claims are material and give rise to jurisdictional error. When considered cumulatively, these errors significantly undermine the integrity of the Tribunal's ultimate finding that the first applicant did not suffer domestic violence at the hands of her husband. The first applicant's account of domestic violence was central to her claim for protection. It was a critical or foundational element of that claim for protection. I am therefore satisfied that there exists a realistic possibility that, but for these errors, the decision that was made in fact could have been different: see LPDT at [7].

1. For the above reasons, the application before this Court succeeds.
2. Finally, as a consequence of:

(a) changes to Ministerial portfolio arrangements following the recent 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 ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[5] CB 297 at [76] to CB 299 at [80].

[6] CB 299 at [82] to CB 300 at [83].

[28] CB 302 [95]; CB 292 [48]; CB 294 [62].

[30] See cl 880.222 in Pt 80 of Sch2 to the Regulations and Part 5 in Sch 6A to the Regulations.

[33] FR submissions filed on 13 January 2025, at [11].