SZOEV v Minister for Immigration and Citizenship [2025] FedCFamC2G 2115

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

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

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

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

Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210; FCA 516

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

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

MZZZM v Minister for Immigration and Protection (2014) 291 FLR 348; FCCA 2665

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

Republic of Nauru v WET040 (No 2) [2018] HCA 60; (2018) 362 ALR 235; HCA 60

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

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

SZBEL v Minister for Immigration (2006) 228 CLR  152; HCA 63

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; FCAFC 71

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

SZOEV v Minister for Immigration and Citizenship [2010] FCA 1045; (2010) 117 ALD 524; FCA 1045

SZOEV v Minister for Immigration and Citizenship [2010] FMCA 407

SZOEV v Minister for Immigration and Citizenship [2011] HCASL 28

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

W148/00A v Minister for Immigration and Multicultural Affairs (2001) ALR 703; FCA 679

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. The name of the first respondent be amended to Minister for Immigration and Citizenship.
2. The name of the second respondent be amended to Administrative Review Tribunal_._
3. The application filed 30 January 2019, as amended, be dismissed.

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 for various reasons including where necessary to remedy clerical errors, accidental slips or omissions (r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)).

1. Before the Court is an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 3 January 2019. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant both applicants a Subclass 866 (Class XA) Protection visa (protection visa).
2. The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
3. The following six issues arise for consideration in this matter:

(a) First, whether the Tribunal failed to properly consider the applicants' corroborative evidence.

(b) Second, whether it was illogical for the Tribunal to find at [33] of its reasons that the second applicant's evidence was false.

(c) Third, whether the Tribunal failed to give a cogent explanation for its finding at [33] of its reasons that the second applicant's evidence was false.

(d) Fourth, whether the Tribunal failed to consider whether the second applicant met the complementary protection criterion in s 36(2)(aa) of the Act (complementary protection criterion).

(e) Fifth, in the event the Tribunal did consider whether the second applicant met the complementary protection criterion, whether it was properly considered.

(f) Sixth, whether the Tribunal denied the second applicant procedural fairness by failing to present or give the second applicant an opportunity to respond to its opinion that his evidence was false.

1. The applicants sought to challenge the Tribunal's reasons and findings on the grounds set out at [31] of this judgment. For the reasons that follow at [33] to [79] of this judgment, I find the applicants have not demonstrated jurisdictional error, and the application is dismissed.

1. The background and procedural history to this proceeding was set out in the Minister's written submissions, which I primarily adopt.
2. The family unit in this matter is comprised of a father (first applicant) and son (second applicant). Both applicants are male nationals of Bangladesh.[1] The first applicant first arrived in Australia as the holder of a Subclass 675 Medical Treatment (Short Stay) (Class UB) visa on 24 April 2009 together with the second applicant.[2]

1. On 5 June 2009, the applicants applied for protection visas, which were refused by a delegate of the Minister on 3 September 2009 (delegate's first decision).[3] On 5 February 2010, the former Refugee Review Tribunal affirmed the delegate's first decision not to grant the applicants the protection visas.[4] The applicants challenged this decision in the Federal Magistrates Court (as it then was) (SZOEV v Minister for Immigration and Citizenship [2010] FMCA 407), the Federal Court (SZOEV v Minister for Immigration and Citizenship [2010] FCA 1045; (2010) 117 ALD 524; FCA 1045), and the High Court (SZOEV v Minister for Immigration and Citizenship [2011] HCASL 28), but were unsuccessful at all levels. The applicants' subsequent requests for Ministerial intervention were declined.[5]
2. On 1 November 2012, the applicants lodged a further application for protection visas.[6] The first applicant claimed fear of harm from the Awami League due to his support for the Bangladesh Nationalist Party (BNP), and from Muslims because he is Hindu and would be perceived as someone returning to Bangladesh with a lot of money. The second applicant did not present any claims of his own, instead relying solely on the first applicant's claims for protection. On 2 November 2012, an officer of the first respondent's Department advised the applicants that their further protection visa application was invalid, as s 48A of the Act prevented a person who had not left Australia since they were refused a protection visa from making a subsequent protection visa application, and that the application will be considered as a request for the Minister to exercise the power in s 48B of the Act to allow a further application if it is in the public interest to do so.[7]
3. On 3 July 2013, the Full Court gave its decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; FCAFC 71 (SZGIZ). In its broadest sense, SZGIZ allowed non-citizens who had previously submitted a valid protection visa application to have it reconsidered against the complementary protection criterion.
4. On 19 September 2013, the delegate acknowledged the further protection visa application in light of SGZIZ and commenced processing that application for the purposes of assessing the applicants, where applicable, against the complementary protection criterion.
5. On 21 March 2014, the first applicant was invited to attend an interview with a delegate of the Minister on 9 April 2014.
6. On 3 November 2015, the delegate refused to grant the applicants protection visas (delegate's second decision). [8] The delegate found that the first applicant was not a credible witness and therefore rejected his claims for protection.

1. On 27 November 2015, the applicants applied to the Tribunal for review of the delegate's second decision.[9]
2. Between March 2017 and January 2019, the applicants provided the Tribunal with numerous medical records and supporting documents concerning the second applicant's physical health. These included, in particular, a psychological report prepared by Dr Fayza Al Shamali on 11 June 2018.[10] In that report, Dr Al Shamali:

(a) diagnosed the second applicant with Major Depressive Disorder and Complex Post-Traumatic Stress Disorder, as well as recorded a number of the second applicant's ongoing health problems;

(b) stated that his report was prepared at the second applicant's request; and

(c) recorded a narrative of events as recounted by the second applicant, including the following:

[The second applicant] added that at the age of almost 16; in Bangladesh, was kidnapped for 6 days by a gang from different faith. The abductors asked his father to pay half million of Taka (Bengali currency), as a ransom and to leave the country otherwise they won't return his son back. Moreover, they forcefully circumcised him and cut off his penis in unhygienic and non-surgical way which caused him bleeding and they didn't care about him despite his sever pain. However his father paid the ransom to the kidnappers; they didn't release [the second applicant] before 6 days.

His father took him to nearby hospital straight away; but unfortunately [the second applicant] was late condition; he has undergone numerous operations in different hospitals but didn't cure his medical problem as he complained there was blood on passing urine. His specialist surgeons advised him to see specialist doctors in India. He visited few surgeons who told him they can't do anything to him and he might find treatment in Australia.

1. On 7 July 2017, the Tribunal invited the applicants to provide any additional evidence and advise of any reason why they may not be able to attend a hearing in the coming months. [11] Between August 2017 and January 2019, the applicants requested on multiple occasions the Tribunal delay the hearing due to the second applicant being on a surgery waiting list.[12] Initial adjournment requests were denied due to lack of detail specifying the scheduled surgery date and supporting evidence, but after further medical documentation was provided by the applicants on 5 March 2018, the hearing was adjourned.[13]

1. On 30 April 2019, the Tribunal invited the applicants to attend a hearing to give evidence and present arguments on 12 June 2018.[14]
2. The applicants attended that hearing, assisted by an interpreter certified by the National Accreditation Authority for Translators and Interpreters in the Bengali and English languages.[15]

1. Following the hearing, on 18 June 2018 the Tribunal wrote to the applicants identifying inconsistencies in the first applicant's evidence and invited the applicants to comment on or respond to the identified inconsistencies by 11 July 2018 (s 424A invitation letter).[16] By that letter, the Tribunal identified a number of inconsistencies in the first applicant's evidence and the consequences if it were to find the first applicant's evidence was not credible. Relevantly, the s 424A invitation letter contained the following paragraphs (reproduced below save for deidentification):

Evidence about kidnapping

In his written statement, the applicant said that his son was kidnapped by a number of people while he was not at his home. He said that when he found out about this and returned to his home one of the kidnappers 'SB' telephoned him and said not to go to the police, to pay a ransom and, in addition, 'to become a Muslim and to leave the country'. This information is relevant because to this Tribunal although the applicant said that his son was kidnapped he said that at no stage did he speak to any of the kidnappers.

In addition, when asked by this Tribunal what demands the kidnappers made of him he said that they demanded payment of a ransom, nothing else. The applicant's evidence on this issue appears to be inconsistent and this may lead the Tribunal to find that the applicant's evidence is not credible. The consequences of the Tribunal making that finding are set out below.

Consequences of the Tribunal finding that the applicant's evidence is not credible

If the Tribunal was to find that the applicant's evidence is not credible then it would find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the removal of the applicant and his son from Australia to the receiving country, Bangladesh, there is a real risk that they will suffer significant harm. In that sense, the information in question would be the reason or a part of the reason for affirming the decision under review.

1. The applicants sought extensions of time to respond to the s 424A invitation letter as they attempted to obtain pro bono legal advice, which the Tribunal granted on each occasion.[17] In response to the s 424A invitation letter, the applicants submitted, among other things, a written statement of the first applicant dated 31 July 2018 (first applicant's s 424A response)[18] and a written statement of the second applicant dated 13 July 2018 (second applicant's s 424A response).[19]
2. The first applicant's s 424A response relevantly read (reproduced below save for deidentification):

Explanation and Kidnapping

Again, I am stating that "they kidnapped my son. They phone my friend SH and through him they threat me, asked not to go to police, asked for ransom, asked to become "Muslim" and or leave the country". But at the Tribunal while the asked "demand", for the lack of understanding, I thought 'demand' means they referred to the ransom, that is why I only mentioned the ransom where as all other threats are true. In Bangladesh, demand usually refers to money value. The event happened in 1997 when mobile phone was not a common device in Bangladesh; very few people owned mobile phone and 'SB' contacted through my friend's (SH who is also the negotiator) mobile.

1. The second applicant's s 424A response contained references to various guidelines and reports in relation to assessing credibility in refugee status determination processes, including Departmental policy guidelines, with a request for the Tribunal to consider the trauma faced by the applicants when assessing credibility, particularly their struggle to recall dates as they had arrived in Australia some ten years earlier. The second applicant also drew the Tribunal's attention to the inappropriate questioning he had experienced during a previous hearing with the Refugee Review Tribunal.

1. On 3 January 2019, the Tribunal affirmed the delegate's second decision not to grant the applicants the protection visas.[20]
2. The Tribunal summarised the first applicant's claims for protection, being that the Awami League and certain Muslim small business owners will harm him.[21] The applicant also claimed to fear harm from supporters of the Awami League and the police acting on behalf of that party because of his support of the BNP and that Muslims in the Awami League would harm Hindus.[22]
3. The Tribunal noted that it held credibility concerns about the following claims made and evidence given by the first applicant in support of those claims:

(a) fear of harm from Muslim small businessmen;

(b) political activities;

(c) harm in Bangladesh;

(d) hiding before leaving Bangladesh; and

(e) kidnapping of the second applicant.[23]

1. The Tribunal's reasons record it identified the following inconsistencies in the first applicant's claims and evidence submitted to the Tribunal and given orally at the hearing:

(a) He claimed to have feared harm from unhappy Muslim small business owners and separately the Awami League due to his support for the BNP, but later stated that the small business owners were linked to the Awami League without satisfactory explanation.[24]

(b) He claimed to have reduced his political involvement with the BNP due to fear, then claimed he undertook significant political activity during the 2008 elections.[25] There were discrepancies in the names of leaders he supported and the extent of his involvement, which impacted the credibility of his account.[26]

(c) He denied being attacked or pursued by police in Bangladesh, which contradicted earlier claims of home raids, beatings and false charges.[27] The Tribunal found no credible evidence of persecution or police interest in him.[28]

(d) Both applicants gave evidence that the first applicant remained at home and continued business-related activities before fleeing Bangladesh.[29] The first applicant then claimed he hid in another city before fleeing Bangladesh and failed to explain this discrepancy in his evidence.[30]

(e) In relation to the second applicant's kidnapping, the first applicant initially stated that he spoke to the kidnappers through an intermediary and the kidnappers only demanded payment of a ransom, but later stated that he spoke directly to the kidnappers and they demanded the first applicant change his religion to become a Muslim in addition to the ransom payment.[31] The Tribunal rejected his explanation and concluded the account was fabricated.[32]

1. The inconsistencies and concerns outlined in the preceding paragraph led the Tribunal to conclude that the first applicant was not a credible witness and that the account of events underpinning his protection claims were false.[33] Accordingly, the Tribunal did not believe nor did it accept the following claims by the first applicant:

(a) he supported and undertook activities for the BNP;

(b) the Awami League ever threatened or harmed the first applicant or any member of his family including attacking his home;

(c) his son, the second applicant, was kidnapped;

(d) Muslims who owned small businesses threatened or harmed him;

(e) a false case or cases have been taken out against him; and

(f) the police had pursued him or held any adverse interest in him.[34]

1. In relation to the evidence given by the second applicant at the Tribunal hearing concerning the alleged kidnapping and forced circumcision, the Tribunal summarised the key aspects of that evidence at [33] of its reasons. It observed that, while the evidence was generally corroborative of one aspect of the claim, that degree of corroboration did not overcome the inconsistencies previously identified in the first applicant's account of the kidnapping, nor other areas of inconsistency in the first applicant's evidence. The Tribunal considered those inconsistencies to significantly undermine the first applicant's credibility and, consistent with its assessment of the first applicant's evidence, concluded that the second applicant's evidence was false.
2. Regarding the second applicant's s 424A response, the Tribunal summarised the submissions made therein at [34], including explanations that the inconsistencies were minor and attributable to the passage of time and the impact of trauma on memory. At [35], the Tribunal acknowledged that the events occurred some time ago and that giving evidence in the protection visa process could be distressing. However, it ultimately found that the inconsistencies in the first applicant's evidence concerned fundamental aspects of the protection claims, which could reasonably be expected to be recounted consistently. The Tribunal concluded that the inconsistencies arose because the first applicant's evidence was false.
3. In reaching that conclusion, the Tribunal addressed at [36] the medical evidence and other documents concerning the second applicant's health. It observed that the authors of those reports were not in a position to assess the credibility of the second applicant's claims. While accepting that the second applicant had sustained an injury to his penis and was receiving ongoing treatment, the Tribunal found there was no credible evidence as to the cause of that injury or the associated conditions. Further, at [35], the Tribunal found there was no credible evidence as to the cause of the second applicant's mental state, other than that it appeared to be attributable to a particular medical condition causing pain and for which he had been receiving treatment in Australia.
4. Taking into account its rejection of the claims and evidence for reasons of credibility, the Tribunal was not satisfied either of the applicants were a person in respect of whom Australia had protection obligations as they did not satisfy the complementary protection criterion in s 36(2)(aa) of the Act. It followed that neither of the applicants met the criteria in s 36(2)(b) or (c) of the Act. On that basis, and having already been assessed against the refugee criterion, the applicants did not meet the criteria for grant of protection visa and the delegate's second decision not to grant the applicants protection visas was affirmed.[35]

1. By an amended application filed on 13 June 2025, the applicants advanced two grounds for review with particulars. At the hearing on 11 July 2025, I granted the applicants leave to amend ground 2 to correct errors made in the references to subsections of the Act. The amended grounds for review are as follows) (reproduced with corrections):
   1. The Tribunal made a jurisdictional error by failing to properly consider corroborative evidence (including the Second Applicant's evidence), or by reasoning illogically with respect to its finding that the Second Applicant's evidence was false, or by failing to give a cogent explanation for that finding.

Particulars

1. The Tribunal determined that the First Applicant was uncredible, and in the course of doing so, rejected the First Applicant's account of a purported kidnapping and forcible circumcision of his son, the Second Applicant, in Bangladesh in 1997 or 1998.

2. The Second Applicant provided corroborative documentary evidence and gave corroborative evidence at hearing of the kidnapping having occurred.

3. The Tribunal, without independently assessing the credibility of the Second Applicant, determined that the Second Applicant's account of the incident was false because it found the First Applicant to be an uncredible witness.

4. The Tribunal made a jurisdictional error by failing to consider whether the Second Applicant the criteria in s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act), or alternatively by failing to properly consider that issue, or alternatively by failing to afford the Second Applicant procedural fairness in respect of that issue.

Particulars

1. It emerged from the evidence before the Tribunal that both Applicants feared, or considered, that the Second Applicant may suffer harm at the hands of the Awami League or others if he returned to Bangladesh.
2. The Tribunal was therefore required to consider whether the Second Applicant met the criteria in s 36(2)(aa) of the Act.
3. The Tribunal failed to consider this issue, and rather only assessed the Second Applicant's claims to protection by reference to s 36(2)(c) of the Act.
4. If, in the alternative, the Tribunal did consider the issue, it failed to do so properly, because it failed to assess the credibility of the Second Applicant's evidence but rather imputed to him credibility findings made with respect to the First Applicant. Alternatively, it failed to afford the Second Applicant procedural fairness by not, either at or after the hearing, putting to him and affording him an opportunity to respond to its view that it considered his account of the purported kidnapping to be false.

(a) the amended application for judicial review filed 13 June 2025;

(b) the affidavit of the first applicant sworn 30 January 2019, annexed to which is a copy of the Tribunal's decision (the affidavit being taken as read and in evidence at the hearing on 11 July 2025);

(c) a Court Book numbering 559 pages (tendered into evidence at hearing on 11 July 2025 by the first respondent and marked as Exhibit 1R);

(d) the affidavit of Ms Anna Clinch affirmed and filed 13 June 2025, annexed to which is a copy of the transcript of the Tribunal hearing held on 12 June 2018 (the affidavit being taken as read and in evidence at the hearing on 11 July 2025);

(e) written submissions filed on behalf of the applicant on 13 June 2025; and

(f) written submissions filed on behalf of the first respondent on 4 July 2025.

1. The issues raised in grounds one and two in the application for judicial review essentially turn on allegations that the Tribunal erred in its treatment of the second applicant's oral evidence at hearing and corroborative documentary evidence in relation to the second applicant's kidnapping and forced circumcision, and that such error materially affected the Tribunal's findings with respect to both applicants. The applicants contend that the Tribunal erred by neglecting to independently assess the credibility of the second applicant when evaluating the likelihood that the claimed kidnapping occurred and in doing so used its adverse credibility findings against the first applicant as the basis for rejecting the second applicant's evidence regarding the claimed kidnapping. The applicants complain that the Tribunal was required but failed to properly consider whether the second applicant met the criterion in s 36(2)(aa) of the Act and in doing so failed to afford the second applicant procedural fairness.
2. Before examining the Tribunal's credibility assessment, it is helpful to set out the relevant principles which govern legal unreasonableness in the context of adverse credibility findings.

1. It is uncontroversial to state that fact-finding is the province of the Tribunal, and not the Court. Facts must be found, by way of the acceptance or rejection of claims, in order for the Tribunal to then proceed towards the determination of whether a criterion, such as those within s 36 of the Act, has been satisfied. It is the Tribunal's carriage of that fact-finding task which is of concern to the Court.
2. It follows that when assessing whether legal unreasonableness has been made out, regard must be had to the Tribunal's reasons but without an eye keenly attuned to the perception of error. In so doing, reasons must be read with an appreciation of their formulation taking into account the process by, and context within, which information is made available to the Tribunal and the manner in which that information is ultimately considered by the Tribunal.
3. It is inappropriate for the Court to insert itself into a quasi-fact-finding role in order to establish whether an approach taken by a Tribunal was reasonable in the circumstances. Rather, when examining a statement of reasons for the presence of legal unreasonableness - which may have manifested where the Tribunal has improperly reached an adverse credibility finding when identifying and assessing inconsistencies within an applicant's narrative - the Tribunal's process of reasoning is to be assessed with appropriate deference towards the Tribunal's scope of decisional freedom.
4. The obligation to give reasons extends to giving reasons for any credibility or reliability findings necessary to dispose of a matter. The evolution of legal unreasonableness since Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; HCA 16 (SZMDS) and Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332; HCA 18 has facilitated the advent of greater judicial scrutiny of a Tribunal's reasons and any credibility findings made.
5. Assessment of credibility is an inherently difficult process and modern authority emphasises that when assessing the credibility of a propounded narrative, decision-makers are encouraged 'to limit their reliance on the appearances of witnesses and to reason their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events': Fox v Percy (2003) 214 CLR 118; HCA 22 at [31] per Gleeson CJ, Gummow and Kirby JJ. 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 and 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 at [36] per Stewart J, citing SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. See also DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; FCAFC 2 at [30] per Kenny, Kerr and Perry JJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; FCAFC 11 at [11] per Allsop CJ.
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; (2016) 69 AAR 210; 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] FCAFC 133; (2018) 266 FCR 83; FCAFC 133 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. Based upon my review of this ground as pleaded, the applicants contend the Tribunal erred by rejecting the second applicant's account of his purported kidnapping and forced circumcision solely on the basis of having found the first applicant's evidence on that claim to be without credibility. It was argued that, by adopting that approach, the Tribunal failed to consider evidence said to corroborate the claim, including the second applicant's oral testimony at the hearing and documentary material concerning his health issues. It was further contended that no cogent explanation was provided for the Tribunal's finding that the second applicant's evidence on the alleged kidnapping was false and that the reasoning underpinning that finding was illogical.

1. Counsel for the applicants, Mr Petry, submitted the Tribunal fell into legal error by rejecting the second applicant's evidence solely because it had earlier found the first applicant to be lacking in credibility, particularly regarding the alleged incident of kidnapping and forced circumcision. It was said that, rather than assessing the second applicant's account independently, the Tribunal simply imported its adverse credibility finding about the first applicant and applied it to the second applicant.
2. Mr Petry pointed to the Tribunal's use of the adverb 'accordingly' in the final sentence of [33] as demonstrating that the rejection of the second applicant's evidence was a direct consequence of the credibility findings made about the first applicant, with no separate reasoning directed to the second applicant's own evidence.[36] The reasons at [33] relevantly provide:

In reaching this finding, the Tribunal took into consideration the evidence given by the applicant's son at the Tribunal hearing. In this respect, the applicant's son gave an account of being kidnapped when he was 10 or 12 years old, losing consciousness soon after he was abducted and not regaining consciousness until he was in a hospital during which time he discovered that he had been circumcised. While this evidence purports to corroborate the applicant's claims about the kidnapping of his son, it does not overcome the inconsistency in the applicant's evidence about the kidnapping as set out above nor the other areas of inconsistency in the applicant's evidence. These areas of inconsistency significantly discredit the applicant as a witness and accordingly the Tribunal finds that not only is the applicant's evidence false but so is that of his son.

1. Mr Petry emphasised that [33] contains the Tribunal's only stated reason for disbelieving the second applicant's account of the kidnapping. To support this, Mr Petry further drew my attention to [36], where the Tribunal reiterates its rejection of the son's account, following its discussion of a psychological report, without providing any additional or independent evaluative reasoning. The reasons at [36] relevantly provide:

In reaching this finding the Tribunal has also considered the report of a psychologist dated 11 June 2018 with respect to the applicant's son assessing him as suffering a Major Depressive Disorder and Post Traumatic Stress Disorder. The psychologist records the applicant's son stating that he had been kidnapped and suffering harm for which he still needs medical treatment. The psychologist is not in a position to assess the credibility of those claims and, for the reasons given above, the Tribunal does not believe the applicant's son was kidnapped in Bangladesh. The Tribunal finds that there is no credible evidence about the cause of the applicant's son's mental state except that it appears to be due to a particular medical condition from which he suffers (with consequent pain) and for which he has been receiving treatment in Australia.

1. Mr Petry submitted that the Tribunal's reference in [36] to 'the reasons given above' must be understood as referring back to [33]. On that basis, it is said that the Tribunal again relied exclusively on its earlier rejection of the first applicant's credibility, particularly concerning the kidnapping allegation, as the reason for dismissing the second applicant's evidence.
2. Mr Petry submitted that [37] continues the same pattern of reasoning seen in [33] and [36]. The Tribunal notes that certain medical records report the second applicant telling health professionals that he was forcibly circumcised during the alleged kidnapping. Mr Petry argues that, rather than engaging with that evidence on its own terms, the Tribunal simply reiterates that such professionals are not equipped to assess credibility and again rejects the son's claims 'for the reasons given above'.[37]
3. In summary of this ground, Mr Petry was of the view that the Tribunal's reasoning proceeded in a circular manner: it rejected the second applicant's credibility solely because it had already rejected the first applicant's credibility; it then dismissed the second applicant's account of how his injury occurred on the same basis; and, consequently, it treated the medical evidence supporting the second applicant's version as unreliable.[38] This approach meant that the second applicant's evidence was 'doomed' to be disbelieved, regardless of the substance of his testimony or the corroborative material he provided.[39]

1. Conversely, the Minister was of the view that '[c]ontrary to what is suggested by the applicant, there is nothing illogical in the Tribunal rejecting the son's evidence because the applicant's evidence was rejected'.[40] This was particularly so where the Tribunal found that the incident of forced circumcision did not occur, and that the second applicant's evidence - summarised in the reasons - was therefore false.[41] The Minister submits the Tribunal's reasoning does not indicate that the second applicant's evidence was ignored - rather it was considered, but was not believed for reasons the Tribunal makes 'perfectly clear'.[42]
2. At hearing, Counsel for the Minister, Mr Reilly, submitted there is no inherent flaw in the Tribunal's approach of rejecting the second applicant's evidence because it found the first applicant to be an unreliable witness, particularly in circumstances where the Tribunal had considered the second applicant's evidence. It is argued that such reasoning is permissible, such that a Tribunal is not required to weigh corroborative evidence (which include the second applicant's oral evidence and medical and other documentary evidence relating to the second applicant's health condition) in circumstances where the first applicant's credibility had been entirely undermined. In support of that argument, Mr Reilly drew my attention to the dicta of McHugh and Gummow JJ at [49] in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59; HCA 30:

In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.

1. Mr Reilly sought to redirect the focus of my consideration of this ground by submitting that the real issue is whether the second applicant's oral evidence was considered at all. He submitted the Tribunal did consider it, adequately summarising the second applicant's account in the second sentence of [33] of its reasons and expressly stating that it took that evidence into account. While Mr Reilly acknowledged the Tribunal could have set out more detail, he submitted that it was not required to do so. On this basis, Mr Reilly argued there is no reason to doubt that the Tribunal considered the second applicant's evidence before concluding it was false.[43]
2. Finally, when addressing the presence of any legal unreasonableness, Mr Reilly submitted that 'emphatic disagreement' with the Tribunal's reasoning is not sufficient to make out illogicality: SZMDS at [124]. In Republic of Nauru v WET040 (No 2) [2018] HCA 60; (2018) 362 ALR 235; HCA 60 at [26] per Gageler, Nettle and Edelman JJ, the Court quoted with approval from W148/00A v Minister for Immigration and Multicultural Affairs (2001) ALR 703; FCA 679 at [64] per Lee, Tamberlin and Nicholson JJ, that a court should not set aside a credibility finding by a review body merely because it thinks the probabilities are against or even strongly against that finding. Accordingly, the Minister submits that the Tribunal's credibility assessment of the second applicant was reached as the result of a cumulative assessment of all of the evidence before it (both oral and documentary). Its subsequent findings on the evidence were open to it for the reasons it gave. That reasoning was not circular as alleged, but simply did not believe the claim despite considering the son's evidence.

1. I am persuaded by the Minister's submissions in relation to this ground.
2. It is apparent from the Tribunal's reasons at [33] that it understood the second applicant's oral evidence and acknowledged the extent to which it aligned with other evidence advanced in support of the kidnapping and forced circumcision claim. However, it concluded that this corroborative element of the second applicant's oral evidence did not dispel the doubts arising from other inconsistencies in the account of that claim, which it regarded as significant. A fair reading of the Tribunal's reasons as a whole demonstrates that it identified, considered and evaluated both the oral and documentary evidence relating to the alleged kidnapping and forced circumcision, and rejected that claim for two distinct reasons.
3. First, the applicants did not dispel the Tribunal's concern regarding the veracity of the claim, arising from the inconsistency identified in the s 424A invitation letter between two aspects of the evidentiary record. The Tribunal made clear that failure to satisfactorily address this concern would form part of its reason for affirming the decision under review, as it would not be satisfied that removal of the first applicant and the second applicant to Bangladesh carried a real risk of significant harm. The reasons demonstrate that the Tribunal considered the applicants' explanations for the discrepancy and rejected them in a manner that was neither illogical nor irrational. It was thereby open to the Tribunal to reject the claim on the basis that the first applicant's account lacked credibility and to implicitly reject the second applicant's oral evidence on that issue, particularly where the applicants had been invited to address the inconsistency through the s 424A process. Nothing in the Tribunal's reasoning discloses legal unreasonableness in identifying and relying on that inconsistency, nor in its approach of giving no weight to the limited corroboration provided by the second applicant's testimony when determining whether to accept or reject the kidnapping and forced circumcision claim.
4. Secondly, the Tribunal's decision to attribute no weight to the medical and other evidence concerning the second applicant's injury and health was sound for the reasons it gave. When pressed at hearing, the applicants' Counsel could not identify any medical opinion - whether from Bangladesh, India or Australia - stating that the second applicants' penile injury bore the hallmarks of a forced circumcision. Mr Petry acknowledged the medical reports that were submitted merely recorded the applicant's self-reported explanation of the cause of the injury and did not express any independent view. In those circumstances, the Tribunal's conclusion that these reports lacked corroborative weight was entirely reasonable.
5. I therefore conclude the Tribunal independently and properly considered the applicants' evidence. Its finding that the second applicant's evidence was false was logical, cogently explained, and not reached in a manner indicative of legal unreasonableness or other form of error.
6. Accordingly, ground one has not been made out.

1. As I understand ground two as advanced by the applicants, it is contended that the Tribunal either failed to assess the second applicant against the complementary protection criterion, or, alternatively, that if it did undertake that assessment, it denied procedural fairness by not putting to him - either during or after the hearing - that it considered his account of the alleged kidnapping to be false and by not affording him an opportunity to respond.
2. At the relevant time, the complementary protection criterion read:

36 Protection visas - criteria provided for by this Act

...

(2) A criterion for a protection visa is that the applicant for the visa is:

...

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

1. Mr Petry submitted that the central issue for ground two is whether a claim of risk of significant harm to the second applicant was before the Tribunal. To support the contention that such a claim did arise, Mr Petry referred to paragraph 33 of his written submissions relating to how the claim squarely arose from the evidentiary material before the Tribunal (reproduced below save for removal of footnotes):

[33] It emerged from the evidence before the Tribunal that both Applicants feared, or considered, that the Second Applicant may suffer harm at the hands of the Awami League or others if he returned to Bangladesh:

(a) In his post-hearing letter dated 13 July 2018, the Second Applicant, implicitly referring to his abduction and forced circumcision, claimed he was subject to "torture": CB 438.

(b) In his post-hearing letter dated 31 July 2018, the First Applicant stated: "The truth is, there are real danger [sic] for me in Bangladesh and there are definite harms for me and my son from the fascist Awami government and their political people": CB 435 (emphasis added).

(c) In a psychological report dated 11 June 2018, registered psychologist Dr Fayza Al Shamali, who had interviewed the Second Applicant (referred due to having depression and anxiety), recorded the Second Applicant's account of the kidnapping (CB 491). Dr Al Shamali went onto to say that the Second Applicant "repeatedly relives the traumas in the form of night-mares and disturbing recollections during the day... He believes that as soon as entered Bangladesh; where experienced the traumatic incident; and with his father will be kidnapped or killed, which impact his social and emotional functioning and left his feeling helpless and fearful for his safety": CB 495 (emphasis added).

(d) In a report dated 26 June 2018, psychiatrist Dr Matthew Holton recorded that the Second Applicant informed him that"...Following the abduction, there were further threats to abduct him. To keep him safe [the Second Applicant] had to stay indoors. He no longer went to school" (CB 524). Further, he noted: "In addition to his pain, his distress is contributed to by flashbacks relating to his abduction. Flashbacks can also be triggered by hearing about news coming from Bangladesh as well as from urinating... " (CB 525).

(e) In a report dated 2 October 2018, Dr Timothy Blake that "[d]ue to a fear of retribution in Bangladesh, [the Second Applicant] has never returned": CB 531 (emphasis added).

(f) At the hearing before the Tribunal, the First Applicant, via an interpreter, made the following comments:

(i) In response to the question, "But in that one and a half years [before the Applicants left Bangladesh], apart from getting those warnings, was there any other trouble or problem the Awami League caused you?", the First Applicant answered: No, these are the thing, and if I say what else, they took my son and they circumcised. This is the bigger thing that we consider, and I was quite - hiding and trying not to participate in any activity, so that I don't get hurt. So I was doing - I was just balancing things out, therefore I didn't - 15 nothing extra happened by the Awami League people, but that's the suffering, which they took my son and then they have conducted circumcision on him." (Recording 53:20-55:15).

(ii) In response to the comment from the Tribunal "[t]he problem you have is that poor medical treatment in Bangladesh isn't what we call 'significant harm'", the First Applicant said: "And the infection that my son is suffering happened due to that circumcised [sic] they have done, and because he was afraid, and this lead to this problem."(Recording 1:58:25-1:59:10).

1. Mr Petry then drew my attention to the Federal Circuit Court decision of MZZZM v Minister for Immigration and Protection (2014) 291 FLR 348; FCCA 2665 (MZZZM). He argued that in light of that evidentiary material, particularly the first applicant's s 424A response to which stated he and his son faced harm 'from the fascist Awami government and their political people', the applicants' case was analogous to the applicants' case in MZZZM where the Court held that a statement expressing fear for both the applicant and family members constituted a claim of significant harm on behalf of those family members: see MZZZM at [92]-[94]. In MZZZM, the Tribunal's failure to consider such a claim and undertake the required predictive assessment was found to be a jurisdictional error: see MZZZM at [94]-[95]. Mr Petry argued the same reasoning applies here, notwithstanding that the daughter in MZZZM had only completed a part of the protection visa application form reserved for members of the family unit of persons applying for protection 'in their own right': see MZZZM at [7].
2. In the first alternative, Mr Petry argued that the Tribunal's statement at [1] of its reasons - that the second applicant applied only as a family unit member without his own claims - was never clarified, and that the Tribunal devoted 24 paragraphs to the first applicant's evidence but dismissed the second applicant's evidence in a single paragraph at [33] of its reasons, consistently referring to him only as 'the applicant's son'.
3. In the second alternative, if the Tribunal did consider the issue, Mr Petry argued that the Tribunal erred by not assessing the second applicant's credibility independently, instead imputing adverse findings made against the first applicant to the second applicant. Further, it is said the Tribunal denied procedural fairness by failing to put the second applicant on notice of its adverse view regarding his kidnapping account, contrary to SZBEL v Minister for Immigration (2006) 228 CLR  152; HCA 63 (SZBEL) at [18], [41]-[47].

1. Conversely, Mr Reilley submitted that the son's material does not disclose any clearly articulated claim of harm in Bangladesh beyond a generalised fear. Mr Reilley points out that the applicant's written submissions at [33] do not identify who the son fears, what harm is threatened, or why it would occur. While some references relate to the alleged forced circumcision, that allegation was rejected by the Tribunal and cannot, of itself, sustain a claim. Further, Mr Reilly contended that MZZZM is factually distinguishable and therefore not binding. He further submitted that it is of limited utility to compare factual circumstances in other cases and then extrapolate that a similar outcome should follow here. Nevertheless, Mr Reilly noted that the Tribunal addressed the only specific claim of significant harm remaining - namely, the alleged risk of inadequate medical treatment faced by the second applicant - and found that there was no real risk of significant harm in that regard.[44] On this basis, Mr Reilly argued that the Tribunal discharged its obligation to consider the complementary protection claims and was not required to engage with vague or unparticularised assertions of fear.[45]

1. As I found earlier when considering ground one, a fair reading of the Tribunal's reasons demonstrates that it identified, understood and evaluated both the oral and documentary evidence concerning the claimed kidnapping and forced circumcision, and rejected that claim for two distinct reasons. On that basis, I reject the applicants' contention that the Tribunal failed to recognise the entirety of the evidence in support of the second applicant's claim for complementary protection. I accept Mr Reilly's submission that MZZZM is factually distinct and am of the view that little support can be derived from seeking to compare the facts of this case with others in circumstances where I have found the Tribunal has already recognised and properly addressed the claims before it.
2. The reasons make clear the Tribunal understood and assessed the claims advanced by the applicants and rejected them in their entirety. Most of the representations referred to in paragraph 33 of Mr Petry's written submissions are vague and unparticularised assertions of fear. In my view, even read at their highest, and having regard to the form in which those claims were presented - largely through statements relayed by medical professionals treating the second applicant for his penile injury - those further fears relate to consequences that might flow to the second applicant from the alleged abduction and forced circumcision. As the Tribunal properly rejected that claim, it follows that it was not required to address any ongoing fears arising from that claim in the manner now contended by the applicants. For sake of thoroughness, the Tribunal properly acknowledged at [54]-[55] the possibility that the second applicant's ongoing need for medical treatment and psychological assistance if he were to return to Bangladesh might be a basis for meeting the complementary protection criterion but ultimately found that it was not.
3. Two questions therefore remain: whether it was improper for the Tribunal not to independently assess the second applicant's credibility when considering the claim, and whether the Tribunal denied procedural fairness by failing to put the second applicant on notice of its adverse view of his kidnapping account pursuant to its obligation under s 425 of the Act.
4. In relation the first question, the Tribunal did assess the credibility of the second applicant's oral evidence and implicitly found it to be false on the basis that it was not substantiated with any evidence of collaborative value and an account of the claim given by the first applicant was discredited due to an unassuaged concern about a significant inconsistency in the first applicant's evidence in relation to that claim. In these circumstances, there was no obligation on the Tribunal to have made further express credibility findings about the second applicant's oral evidence.
5. In relation to the second question, I reject the submission that the Tribunal had denied the applicant procedural fairness by failing to put him on notice of its adverse view of his kidnapping account pursuant to its obligation under s 425 of the Act. In my view, the Tribunal's concern about the second applicant's oral evidence about the claimed kidnapping and forced circumcision cannot, in and of itself, be elevated to an 'issue arising in relation to the decision under review' in the sense described by the High Court in SZBEL. In SZBEL, the High Court stated (at [35]):

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.

...

If the issues on the review of the delegate's decision by the Tribunal are identified no more particularly than by the question "is the applicant entitled to a protection visa?", rejection of some, or all, aspects of his account of the past events said to found his fears of persecution would self‑evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant's claim would be in issue in the Tribunal's review of the delegate's decision. But if the issues are to be identified more particularly, other questions arise.

1. In my view, the applicants were plainly on notice that the dispositive issue was the credibility of their claims, including the allegation of abduction and forced circumcision of the second applicant. Although the delegate only made an adverse credibility finding against the first applicant - given the second applicant did not attend the interview - the delegate's reasons made clear that the claim concerning the second applicant's kidnapping and forced circumcision was not accepted.[46] The Tribunal was therefore under no obligation to draw that matter to the second applicant's attention at the hearing in the manner now contended. Moreover, following the hearing, the s 424A invitation letter afforded both applicants a further opportunity to address that issue, which they did. In these circumstances, there was no denial of procedural fairness.
2. Accordingly, ground two has not been made out.

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

(a) changes to Ministerial portfolio arrangements, 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 eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[36] Transcript of Court proceedings on 11 July 2025, page 8, [9]-[18].

[37] Transcript of Court proceedings on 11 July 2025, page 8, [39]-[45].

[38] CB 551, [32]-[37]; CB 555, [55].

[39] Written submissions of the applicant filed 13 June 2025, page 6, [21].

[40] Written submissions of the first respondent filed 4 July 2025, page 4, [32].

[42] Written submissions of the first respondent filed 4 July 2025, page 4, [32].

[43] Transcript of Court proceedings on 11 July 2025, page 38, [44] to page 39, [9].

[45] Transcript of Court proceedings on 11 July 2025, page 42, [40].