Federal Court of Australia

AMC18 v Minister for Immigration and Citizenship [2025] FCA 1136

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

2.    The name of the Second Respondent is amended to “Administrative Review Tribunal”.

3.    The appeal is dismissed with costs, to be agreed or taxed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HILL J:

introduction

1    This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA): AMC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 463 (J). The primary judge dismissed an application for judicial review of a decision of the former Administrative Appeals Tribunal, which had affirmed a decision not to grant the Appellant a protection visa.

2    For the following reasons, the appeal is dismissed with costs.

background

3    Arrival in Australia (Sep 2013): The Appellant is a citizen of Lebanon. She was previously twice denied entry visas to Australia. On 22 September 2013, she arrived in Australia on a prospective spouse visa. The Appellant’s parents had arranged for her to marry her cousin, Tony (J [1]). The Appellant claims that the relationship with Tony ended a short time after she entered Australia (J [2]).

4    Relationship with Mr A (Nov 2013): Around November 2013, the Appellant met Mr A. She claims that she and Mr A fell in love, and that she told her family that she wished to marry Mr A but her parents refused, because Mr A was a Muslim and the Appellant is a Christian (J [3]).

5    Application for spouse visa (Jun 2014): On 23 June 2014, the Appellant lodged an application for a Spousal visa, sponsored by a Mr K (a friend of the Appellant’s). The Appellant and Mr K were married in a civil ceremony at Wyong F3 Café on 11 June 2014. On 26 May 2015, the Appellant withdrew the visa application, apparently due to a breakdown in the relationship with Mr K (J [4]).

6    Around this time, the Appellant and Mr A attempted to get married. Initially a Muslim cleric, Sheikh Legha, refused to marry them because the Appellant was still married to another man (Mr K). Before the delegate, the Appellant stated that a day after she moved in with Mr A in May 2015 a different Muslim cleric verbally married her to Mr A. (In the Tribunal, she stated that this occurred a few days later: Tribunal reasons for decision (AAT) [39].)

7    Application for protection visa (Jun 2015): On 10 June 2015, the Appellant applied for a protection visa. She claimed to fear harm on her return to Lebanon because she is a Christian married to a Muslim man. The Appellant claims that her family threatened to kill her, Mr A and her children if she returns (J [6]).

8    Delegate refuses visa (Dec 2015): On 8 December 2015, a delegate of the First Respondent (the Minister) refused to grant the Appellant a protection visa (J [7]).

9    Tribunal application (May 2015): On 17 December 2015, the Appellant applied to the Tribunal for merits review of the refusal decision. The Appellant attended a Tribunal hearing on 6 November 2017. She and Mr A each gave evidence.

10    Tribunal affirms refusal (Jan 2018): On 5 January 2018, the Tribunal affirmed the decision not to grant the Appellant a protection visa (J [7]).

11    Judicial review application (Feb 2018, Oct 2021): On 2 February 2018, the Appellant applied to the FCFCOA for judicial review of the Tribunal’s decision. On 6 October 2021, the Appellant filed an amended originating application. The amended originating application contended that the Tribunal had not accorded the Appellant procedural fairness, by conducting the hearing of her application for review in a manner which gave rise to a reasonable apprehension of bias.

12    Primary judge dismisses the application (Jun 2022): On 14 June 2022, the primary judge dismissed the amended originating application.

13    Notice of appeal (Jul 2022): On 8 July 2022, the Appellant filed a notice of appeal which contained a single ground of appeal. That ground is that the primary judge erred by failing to find that the Tribunal failed to accord procedural fairness by conducting the hearing in a way which gave rise to a reasonable apprehension of bias.

14    Amended notice of appeal (Aug 2025): The Appellant seeks to rely on an amended notice of appeal lodged on 22 August 2025, which adds some detail to the existing apprehended bias ground, and seeks to add a second ground that there was no probative basis for the Tribunal’s finding in AAT [65] that the Appellant had been dishonest in at least one statutory declaration.

consideration

Ground 1: Whether a reasonable apprehension of bias due to conduct of Tribunal hearing

15    Ground 1 contends that the primary judge erred in failing to find that the Tribunal’s conduct of the hearing gave rise to an apprehension of bias. The amended notice of appeal spells out that the apprehension is said to arise from the Tribunal’s questioning of the Appellant’s witness (Mr A), which (it is said) gives rise to an apprehension that the Tribunal did not have an open mind to the evidence of the witness, and did not have an open mind to the claims of the Appellant.

16    Apprehension of bias – general principles: The Appellant does not take issue with the primary judge’s statement of principle at J [16]-[20], but contends that the primary judge misapplied those principles. The applicable principles can be summarised as follows.

17    Apprehended bias is shown when a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring a fair and impartial mind to the determination of the matter on its merits. Although the rule is the same for judicial and administrative decision-makers, the application of the rule outside the judicial system takes account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings, and in particular must take account of any applicable statutory provisions: Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41; (2022) 288 FCR 218 at [35], [37] (the Court); Sharma v Minister for Immigration and Border Protection [2017] FCAFC 227; (2017) 256 FCR 1 at [21] (the Court)

18    In the case of the Tribunal, it is necessary to take account of the fact that its role is inquisitorial, and that the Tribunal:

...must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.

Chen at [38]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 464 at [19] (Allsop J, with Moore and Tamberlin JJ agreeing); SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [24] (Flick J), [93] (Robertson J).

19    That is, procedural fairness may require that the Tribunal inform a visa applicant of its concerns about an applicant’s evidence or the consistency of narratives or explanations given by an applicant, or the reliability of information provided. If the Tribunal does not make an applicant aware of its concerns, those concerns may go unaddressed and unanswered: Jatin v Minister for Immigration and Border Protection [2019] FCA 150 at [9] (Mortimer J). The Tribunal’s inquisitorial role may therefore legitimately involve “robust and forthright testing” of a visa applicant’s claims, and such testing will not of itself establish apprehended bias. Similarly, occasional displays of impatience and irritation or occasional sarcasm or rudeness on the part of the Tribunal do not generally establish apprehended bias (although they form part of the relevant factual background): Chen at [50]; see also SZRUI at [24] (Flick J), [91] (Robertson J); Sharma at [22], [24].

20    Instead, apprehended bias (in the form of prejudgment) will be demonstrated if the lay observer might reasonably apprehend that the decision-maker might have embarked on the case with a closed mind, that is to say, a mind not open to persuasion or, expressed another way, a mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. But that is not to say that a decision-maker must be free of a preliminary reaction or an inclination for or against an argument or conclusion: Sharma at [23]; NADH at [20].

21    Finally, it might be noted that the issue on appeal is whether the primary judge was right or wrong in the conclusion that the Appellant had not established any reasonable apprehension of bias: Chen at [42].

22    The impugned conduct of the Tribunal (Ground 1): The Appellant’s arguments draw particular attention to the questioning of Mr A by the Tribunal concerning the claim that Mr A and the Appellant sought to be married when they both knew that she was already legally married to Mr K. These passages are set out in J [23], [27], [34] and [40], but it is convenient to set them out again below, together with the Appellant’s arguments about each passage.

23    First exchange (T42 (4-21)): The first exchange is as follows:

MEMBER: …So why did you want to get married?

INTERPRETER: Because I fell in love with her.

MEMBER: Yes, but why? You can’t get married twice. It’s not right. Yes. It’s illegal in Australia. And your wife is Christian, so she doesn’t really - so she doesn’t recognise your faith. That’s a significant sin in her faith. So I’m just wondering why she would agree to it and why you would seek to do that.

INTERPRETER: When I met [the Appellant] first she had problems with family because they were trying to make her marry someone else and just for her in order to stay in Australia. We used to go out together and I used to know everything, like, you know, about her problem, and for me, I’m not, you know - I’m not strict about religion. That’s her religion. Something personal. My religion is, like, personal.

MEMBER: That’s not answering my question … . (emphasis added)

24    The Appellant submits that the Tribunal was wrong in saying that the witness was not answering the question, and that it was a confrontational exchange. The Appellant submits that the Tribunal’s response shows a mind apparently closed to the witness’s evidence. This is said to be reinforced by the Tribunal’s statement that “[t]hat’s a significant sin in her faith”, which (it is said) did not take account of the Appellant’s evidence that she believed her marriage to Mr K to be a matter of paper only. The Appellant submits the Tribunal’s questioning did not take account of the possibility of either secular or religious law determining that a forced marriage (to Mr K) was a nullity, and therefore a later marriage would not be bigamous or sinful. This last point assumed some prominence in oral argument.

25    Second exchange (T42 (31-46)): The second exchange relied on by the Appellant is as follows:

MEMBER: Yes, but it’s - you knew she was already married. So how could he have - why did you need to find somebody who is a marriage celebrant, because there’s no way they could - it would be illegal for them to marry somebody who is already married. That would be breaking the law. It makes no sense to me, so can you please explain.

INTERPRETER: I know [the Appellant] (indistinct). She was forced to marry and her marriage was only on paper only. Because on paper only. There was nothing else.

MEMBER: Yes, but I don’t think you understand. It’s a legal marriage and you’re telling me that you’re trying to find a legal marriage celebrant to marry someone who is already married. It’s illegal. So why would - they couldn’t do it legally. They would be breaking the law. Why are you trying to get somebody to break the law when you know that they can’t do it? It just doesn’t - that bit doesn’t - the story doesn’t make sense.

26    The Appellant submits that the witness’s answer was clear and straightforward: he and the Appellant did not think that her legal marriage was worth anything because it was just on paper. The Appellant submits that she and Mr A were seeking a religious marriage, and it is entirely reasonable to think that a religious authority might not be troubled by any “paper marriage” under temporal authority. The Appellant submits that for the Tribunal to say that the “story doesn’t make sense” suggests that the Tribunal’s mind was closed to the evidence, because the reason given made sense (in the sense it was intelligible).

27    Third exchange (T43-45): The third exchange relied on by the Appellant concerns whether Mr A knew that it was not possible in Australia for a person to be married to more than one person at the same time:

MEMBER: Sorry, can we just - on what basis did you think you’re in Australia and you’re allowed to be married twice? I don’t understand that at all.

INTERPRETER: Well, what I knew that her marriage was on paper only and she was (indistinct) to it - into it. And, secondly, we fell in love with each other and that’s why we thought we can - you know, we can marry - get married.

MEMBER: You’re not answering the question.

INTERPRETER [the following appears to be the Member]: You’re an adult. I assume that you know what the marriage laws are in Australia. You can only be married to one person, legally. Did you know that?

INTERPRETER: I knew after the sheik told me.

MEMBER: Sorry, this is a yes or know question. Did you know that the law in Australia only allowed you to marry one person at a time? Yes or no.

WITNESS: Yes.

MEMBER: Yes, okay. You knew that before you went to see the sheik.

INTERPRETER: After.

MEMBER: So what did you - it didn’t occur to you at all, living in a western country, that there could be a problem here (indistinct) already married, that could be a problem?

INTERPRETER: All I - all I knew, that she was first - like, you know, forced into the marriage just for the, like, you know, the papers. That’s why I, like, you know, I was encouraged to go and do it.

MEMBER: You’re avoiding the question. Did you know before you went to the sheik that you’re not allowed to be married twice in Australia? Sorry, at the same time. Yes or no.

INTERPRETER: No.

MEMBER: It didn’t occur to you at any time to check whether somebody could be married to two people at the same time?

INTERPRETER: No, that didn’t occur to me, and I never was in (indistinct) relationship with someone else.

MEMBER: Okay. So in Lebanon Christians are allowed to be married to two people at the same time?

INTERPRETER: I don’t know much about them, to tell you the truth.

MEMBER: I find that extremely hard to believe. So you don’t know that Christians aren’t allowed to have multiple wives or multiple husbands?

INTERPRETER: I thought, like, you know, you meant that, you know, if a woman is allowed to marry two men. That is what I thought.

MEMBER: Are women in Islam or Christianity allowed to be married to two husbands at the same time?

INTERPRETER: No.

MEMBER: So why did you think they could be here?

INTERPRETER: Because she was married only on paper.

MEMBER: No, she was married legally. So why did you - so she’s married legally in Australia. You went out of your way to find a marriage celebrant - not somebody who wasn’t a marriage celebrant. You said they had to be a marriage celebrant. That’s why Halid Hanza told you who the marriage celebrant was. So, you know, it makes no sense. I’m trying to establish your credibility, or whether you’re telling the truth. So you’ve told me that you know that women can’t be married to two people at the same time in either Islam or Christianity.

INTERPRETER: Yes, correct.

MEMBER: You know she’s married.

INTERPRETER: Yes.

MEMBER: You went out of your way to find - you’re telling me you went out of your way to find somebody, whose name you can’t tell me, a sheik who is a registered marriage celebrant, which is the whole reason you went to find that person, not the sheik from Guildford, who you didn’t know was a registered marriage celebrant. So you went out of your way to find somebody who could marry a woman to two men at the same time. You can appreciate that, from my end, that story just doesn’t make sense. Do you understand?

WITNESS: Yes.

MEMBER: So are you telling me the truth?

INTERPRETER: I’m telling you the truth.

MEMBER: So why are you knowingly breaking the law? Well, sorry, knowingly trying to break the law? It doesn’t make any sense.

INTERPRETER: Can I sort of explain to you again?

MEMBER: Have you explained it twice? You’ve told me the facts, so I assume it’s the same. What is different to (indistinct)?

INTERPRETER: Yes. I was not looking to break the rule. The whole story is I went to, like, the sheik, and the sheik told me that, ‘Because your wife is legally married, I cannot marry you legally.’

MEMBER: But you would have known before. Because you know women can’t marry - even in your religion, women can’t marry two men. So you’ve told me you went specifically to somebody, to a marriage celebrant, somebody who could legally marry you in Australia, but you didn’t go to the Guildford sheik because you didn’t know whether he was a marriage celebrant.

INTERPRETER: I wanted something to be done legally.

MEMBER: Exactly. But it couldn’t be. See, that whole story just doesn’t make sense. We won’t go down that path any further. (emphasis added)

28    The Appellant submits that the Tribunal did not seem to understand, and apparently had a mind closed to, the witness’s simple answer. The Appellant submits that it was a minor point, and there was “intense cross examination, over a side issue”. The Appellant submits that it is not unreasonable for a person to think that a mere “paper” legal marriage might not stand in the way of an Islamic marriage being celebrated.

29    Fourth exchange (T48): The fourth exchange on which the Appellant relies concerns questions to Mr A about why the Appellant and Mr K had not previously divorced:

MEMBER: If you want to marry your wife legally why hasn’t she filed for divorce? She’s still married to somebody else. You said it’s been two and a half years since she met you, surely she would be – surely you’d be really cracking at her to get rid of the other guy so you can marry her legally.

INTERPRETER: We were waiting for the tribunal, for my wife to finish, so we can start this proceeding.

MEMBER: Why do you need to wait for that?

INTERPRETER: Well, nothing (indistinct) we’re only waiting for this tribunal results to be able to start the proceeding for divorce.

MEMBER: Why do you think her husband hasn’t started it then? He’s not waiting on a protection visa application and, you know, she’s run away with you, she’s brought shame on her whole family. You’d think he’d want to be rid of her as soon as he could but he hasn’t done anything. It’s a bit strange, isn’t it?

INTERPRETER: I don’t know him personally.

MEMBER: No, no, but I mean just on the face of it just I find it strange that, you know, he hasn’t – it’s been two and a half years, his wife eloped to somebody who doesn’t have the same religious background. You’d think he’d want to move on. It raises questions in my mind. (emphasis added)

30    The Appellant points out that there was no evidence about Mr K’s attitude to the matter. The topic was discussed with the Appellant (at T33), in what the Appellant submits is “rather polite terms”. The Appellant submits that Mr A’s religion was not relevant to an assessment of whether Mr K might want to divorce the Appellant. The Appellant submits that the impression for the informed lay observer was that the Tribunal, without evidence from Mr K, believed that he would have wanted a divorce, and further that there was something particularly aggravating for Mr K about the Appellant leaving him for Mr A, a Muslim rather than a Christian. This meant (it is said) that there was an apprehended possibility that the Tribunal’s mind was closed against the witness (and therefore the Appellant) on the basis of assumptions in the absence of evidence about Mr K’s views. The Appellant contends this impression is reinforced by the statement in AAT [70] about the “ignominy of … running away with a Muslim asylum-seeker”.

31    Consideration (Ground 1): The Appellant’s argument on Ground 1 is the same as put to the primary judge, and should be rejected for essentially the same reasons as those given by his Honour. Ultimately, when the transcript is read as a whole, the passages complained of are properly seen as no more than robust and forthright questioning by the Tribunal member, and do not give rise to any reasonable apprehension of bias.

32    Need to consider the whole transcript in the light of the claims made: Two general points should be made at the outset.

    First, apprehended bias is assessed by considering the whole of the hearing, not individual passages in isolation: SZRUI at [75] (Robertson J). I note that the Court does not have an audio recording of the Tribunal hearing, so this ground is being determined on the basis of the transcript of that hearing.

    Second, the hypothetical fair-minded lay observer is properly informed as to the nature of the proceedings, the matters in issue, and the conduct which is said to give rise to an apprehension of bias: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [28] (Gleeson CJ, Gaudron and Gummow JJ).

33    The significance of the first point is that the Tribunal asked the Appellant many of the same questions as it asked Mr A, and tested her claims with some vigour. (For example, the Tribunal member stated to the Appellant at one point that it “doesn’t make sense” that the Appellant thought she could be married twice.) The Appellant does not make any complaint about this questioning. That occurred before Mr A gave evidence. The stage of the hearing is relevant: a vigorous intervention early in a hearing may be less readily excused than one at a later stage where it is designed to permit the decision-maker to comprehend the issues: Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 99; (2024) 304 FCR 370 at [43] (point 5) (the Court). For example, in Sharma, the Tribunal made statements about the appellant in that case being evasive and rehearsed at such an early stage in the hearing that it might suggest to a reasonable lay observer that the Tribunal member had closed his mind to any explanation from the appellant on the relevant matter: Sharma at [36]. Here, by contrast, the Tribunal’s questioning of Mr A occurred after it had already heard evidence on the topic from the Appellant, which was largely to the same effect. In addition, the Tribunal’s questioning of Mr A began with several attempts by the Tribunal to get Mr A to tell the Tribunal of the circumstances surrounding the claimed religious marriage by the sheikh. Then, as part of the first exchange relied on by the Appellant, the Tribunal member sets out his concern that it is not possible in Australia for the Appellant to be married twice and states: “So I’m just wondering why she would agree to it and why you would seek to do that”. These statements indicate that the Tribunal was genuinely seeking to have Mr A explain to the Tribunal what had occurred.

34    The significance of the second point above is that the Tribunal’s questions must be understood in the light of the claims made by the Appellant. She claimed that she feared harm on return to Lebanon from her family because she had married a Muslim man. She stated at the Tribunal hearing that she “brought them [her family] shame because I married a Muslim man”.

35    For that reason, the question of whether the Appellant and Mr A were married – in whatever sense – was central to her claims. Far from being a side issue (as the Appellant argues), the issue of whether the Appellant or Mr A thought that it would be possible for her to marry Mr A while she was already legally married to Mr K went directly to the credibility of this claim. The Tribunal was entitled to test this claim vigorously. The importance of this claim is illustrated by the fact that the Tribunal ultimately found that the actions of getting a Muslim cleric to marry them so lacked credibility that it appeared to be “staged” (AAT [72]).

36    The question in these proceedings is not whether the account of the Appellant and Mr A was reasonable (that her marriage to Mr K was a paper marriage, which would not prevent a religious marriage to Mr A): cf [28] above, but whether there is a reasonable apprehension of prejudgment by the Tribunal. When the Tribunal stated that the Appellant and Mr A’s account did not “make sense”, this did not mean that the Tribunal found the claims were unintelligible: cf [26] above. Rather, this meant that the Tribunal found this account to be completely implausible, given the matters referred to in AAT [72]-[73]: namely:

    neither Christianity nor Islam permitted a woman to marry multiple husbands;

    as an observant Christian, the Appellant would have known that it was not possible in either Australia or Lebanon to be married to two men;

    it was completely implausible that Mr A would be unaware that it was illegal for a woman to be married to two men in Australia, given the same rule applies in Lebanon;

    Sheikh Legha (to whom they went initially) explained to them that it was illegal for the Appellant to be married to two men;

    the document said to be an Islamic marriage contract was handwritten on a piece of torn notepaper, without a date and without any indication that anyone legally qualified was present to marry them, and Mr A did not know the name of the “sheikh” who married them.

37    This is a permissible chain of reasoning, and does not demonstrate prejudgment.

38    No need to consider whether the marriage to Mr K was void: In oral argument, the Appellant argued that the Tribunal failed to consider whether the Appellant’s marriage to Mr K was legally ineffective (or “void”), and that this failure demonstrated that the Tribunal had brought a closed mind to the matter: cf [24] above. The Appellant pointed out that Australian law provides for proceedings for a decree of nullity of marriage on the ground that the marriage is void (Family Law Act 1975 (Cth) s 51); and that a marriage is void if (among other things) the consent of either party was obtained by duress or fraud (Marriage Act 1961 (Cth) s 23B(1)(d)(i)). The Appellant contends that her written claim that she was “forced” to marry Mr K, and the statements by her and by Mr A at the Tribunal hearing that her marriage to Mr K was only a marriage “on paper” clearly raised the possibility that the marriage was void because of duress.

39    In principle, I accept that a failure by a decision-maker to consider an obvious alternative explanation for a situation could be an indication of prejudgment. In this case, however, nothing in the written materials or the oral evidence of the Appellant or Mr A fairly raised the possibility that the reason they thought they could be married by a sheikh was because her marriage to Mr K was legally defective. To the contrary, they appeared to accept that the marriage to Mr K was legally effective, and used the expression “paper marriage” in the sense that the Appellant was not in a real relationship with Mr K but instead loved Mr A.

    For example, Sheikh Legha provided an affidavit stating that he refused to marry the Appellant and Mr A, because he discovered that the Appellant was the legal wife of someone else (that is, Mr K). That affidavit states that the Appellant and Mr A tried to convince Sheikh Legha that they could be married, because the Appellant did not live with Mr K and they broke up a while ago.

    It is true that the Appellant’s statutory declaration does contain a statement that she was “forced” to marry Mr K. However, the Tribunal plainly took a very different view of the Appellant’s marriage to Mr K: the Tribunal found that her marriage to Mr K was linked to the expiry of her original visa, and that she was reliant on her engagement (then marriage) to Mr K for her legal residency status (AAT [67], [69]). Further, the Tribunal observed that the Appellant had not applied to divorce Mr K, even though it was more than two years since their marriage (AAT [70]-[71]), which again runs counter to the claim that she was forced to marry him.

40    Response to particular exchanges relied on: The primary judge was therefore correct to reject the Appellant’s arguments about the four particular passages of transcript set out above.

(1)    With the first exchange (set out in [23] above), there is some merit to the Appellant’s submission that the initial question was not well put. However, the Tribunal subsequently clarified the question, and received a more direct answer (as noted by the primary judge: J [25]). This further exchange is consistent with the Tribunal seeking to test Mr A’s evidence, and put to him the difficulties that the Tribunal had in accepting that evidence.

(2)    With the second exchange (set out in [25] above), it was open to the Tribunal to explore the claim that the Appellant’s marriage was only a paper marriage, which did not prevent her from marrying Mr A. That is particularly the case when the document said to evidence this religious marriage was a document of uncertain provenance (see J [32]).

(3)    With the third exchange (set out in [27] above), the Tribunal member tested in the most forthright terms the evidence of Mr A that he thought it was possible to obtain a religious marriage, even though the Appellant was already married. Contrary to the Appellant’s argument, this was no mere side issue: cf [28] above. This questioning is no doubt robust and forthright, and reveals some scepticism on the part of the Tribunal member. However, when read in context, the Tribunal in this exchange is doing no more than testing Mr A’s evidence (see J [39]).

(4)    With the fourth exchange (set out in [29] above), it is important to recall the nature of the Appellant’s claims to fear harm. The fact that Mr A is Muslim is a central part of her claims to fear harm, so the reference to his religion by the Tribunal member and to the Appellant bringing “shame” on her family merely reflects her claims in the Tribunal (see J [44]). In this context, the reference in AAT [70] to Mr A being an asylum seeker is connected with the Tribunal’s view that the Appellant’s marriage to Mr K was to achieve a migration outcome, and does not reveal animus against Mr A. The question of why Mr K had not sought to divorce the Appellant is a legitimate question of enquiry. It may perhaps be unsurprising that Mr A did not know the answer to the question; however, putting that matter to Mr A does not demonstrate any impermissible pre-judgment on the part of the Tribunal.

41    I agree with the primary judge that perhaps some of the matters put by the Tribunal could have been expressed in a different way (see J [45]). However, different Tribunal members will perform their task in different ways: see Jatin at [20]. In this case, as in Jatin, the Tribunal member was forthcoming, frank and quite emphatic, but also gave Mr A ample opportunity to explain his claims. Although the Tribunal was sceptical about Mr A’s claims, the transcript as a whole shows that the Tribunal member gave Mr A a chance to understand its preliminary views and to deal with them: see Jatin at [21].

Proposed Ground 2: Whether finding that Appellant had fabricated a statutory declaration lacked a probative basis

42    New proposed Ground 2 in the amended notice of appeal contends that it was legally unreasonable for the Tribunal to find in AAT [65] that the Appellant had fabricated and been dishonest in at least one statutory declaration.

43    Leave to raise new argument on appeal? This argument was not put to the primary judge. The Appellant correctly recognises that she requires leave to raise it on appeal. The issue is whether granting leave to raise the new argument is in the interests of justice, having regard to matters such as whether there is an explanation for not raising the point at first instance, whether there is prejudice to any party, and whether the new point has any merit: DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; (2024) 301 FCR 344 at [23]-[24] (the Court); see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]‑[48] (the Court).

44    It is common ground that the decisive factor in this case is whether the argument has merit: the Court has held that it is likely to be in the interests of justice to ensure that an administrative decision arguably affected by jurisdictional error and capable of depriving a person of liberty (and potential liability to removal from Australia) is not carried into effect: Fualau v Minister for Home Affairs [2020] FCAFC 11 at [16] (the Court); see also CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 at [36] (the Court). This assessment of merits may be undertaken at an impressionistic level: see NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [31] (the Court); AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176 at [58] (the Court).

45    For the following reasons, I consider that proposed Ground 2 lacks sufficient merit for it to be in the interests of justice to grant leave to raise this argument on appeal, given that no other factor favours the grant of leave.

46    Impugned Tribunal reasoning (Ground 2): The Tribunal summarised the Appellant’s claims and the evidence at AAT [9]-[60], then considered those claims and evidence from AAT [61]ff. Relevantly to proposed Ground 2, the Tribunal’s reasons included the following:

64.     I found the applicant’s evidence regarding her claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness. She lacks integrity and I am satisfied that she knowingly provided at least one fraudulent document in support of a visa application.

Knowingly Providing False Written Evidence to the Commonwealth

65.     The applicant was put on notice via a s 424A letter that she may have provided false information in a statutory declaration. She replied (folio 68) that her brother and ex-husband (I take this to mean [Mr K]) filled out the statutory declaration and she was simply asked to sign it. She had never previously mentioned this and, given her lack of credibility elsewhere I am satisfied that she understood what was in the statutory declaration and signed it knowing it to be false. (emphasis added)

66.    I am satisfied that the applicant has entered into previous relationships for the purpose of gaining entry into Australia. …

47    The Appellant contends that the emphasised words in AAT [65] above lacked a logically probative basis or were otherwise legally unreasonable.

48    Background (s 424A letter and response): The s 424A letter (dated 13 December 2017) referred to in AAT [65] put the following information to the Appellant via her representative:

    On 22 April 2015, the Appellant submitted a statutory declaration relating to a prospective spouse visa. Her declaration stated that she forgot the expiry date of her prospective partner visa (for which she was sponsored by Tony) “due to excitement and happiness [she] was feeling at the time” of her marriage to Mr K in June 2014. Her declaration also stated that she and Mr K “have been inseparable since we met and we cannot live apart”.

    The Appellant’s application for a protection visa in June 2015 was accompanied by an undated statutory declaration, in which she stated that she was forced to marry Mr K. The Appellant stated in the Tribunal hearing that she remained in love with Mr A and ran away with him in May 2015.

49    The Appellant responded to the s 424A letter with a handwritten statement dated 15 December 2017, which stated that the partner visa application was filled in by her brother and Mr K, that she does not read or write English, and that she did not know the content of the statutory declaration provided with the partner visa, but she was only asked to sign it. This explanation was rejected by the Tribunal in AAT [65].

50    Legal unreasonableness – illogical or irrational findings: In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21, the Full Court summarised the principles relevant to illogical or irrational decision-making as follows (citations omitted):

[33]    The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: … .

[34]    The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: … . It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. … [T]he evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

[35]    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: … , such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

See also Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277 at [51]-[52]; XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 at [63]-[64] (the Court).

51    Here, the test of illogicality or irrationality is particularly stringent, because the challenged finding in AAT [65] is one going only to credit, and not a finding about the Appellant’s claims as such. The Minister relies on the well-known summary of principles in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30] (the Court). I am content to assume for present purposes that a finding that the Appellant has forged at least one statutory declaration is so serious that it would be a critical step in the Tribunal’s reasoning (so that there would be a jurisdictional error if that finding were made without a probative basis).

52    Adverse credibility findings (marriages and partnerships): It is necessary to read the Tribunal’s reasons as a whole to identify the Appellant’s “lack of credibility elsewhere” referred to in AAT [65]. The Tribunal made the following adverse findings against the Appellant in its reasons on the Appellant’s marriages and partnerships (at AAT [66]-[75]):

    The Tribunal was satisfied that the Appellant had entered into previous relationships for the purpose of gaining entry into Australia. The Appellant’s entry into Australia was sponsored by her cousin Tony, but the relationship ended a month or two after she arrived in Australia, without giving him a second chance or advising the Department at that time (AAT [66]).

    The Appellant married Mr K in June 2014, just after her original visa expired in May 2014. This coincidental timing meant the Tribunal was satisfied that the marriage to Mr K was linked with the expiration of her original visa (AAT [67]). The Tribunal was not satisfied that this was a genuine marriage: for example, the Appellant and Mr K were married in a civil ceremony in a McDonalds, despite her claiming to be from a religious family (AAT [68]-[69]).

    The Tribunal found that, although the Appellant and Mr A have formed a genuine relationship, her account of “running away” with Mr A was fabricated (AAT [70]). The Appellant’s reasons for not seeking to divorce Mr K lacked credibility. Among other things, despite claiming that a lack of English and ability to access a computer precluded her from finding out about Australian divorce procedures, the Appellant was able to apply for a protection visa despite these alleged hurdles. In addition, it lacked credibility that Mr K would not seek divorce in two and half years to enable himself to marry again (AAT [71]).

    The actions of the Appellant and Mr A attempting to get a Muslim cleric to marry them so lacked credibility that it appeared that the action was staged (AAT [72]-[73]). The particular reasons for that finding are summarised in [36] above.

53    The Tribunal also made other adverse credibility findings in other parts of its decision; for example, in considering the family targeting claim, the Tribunal found that the Appellant had been “deliberately deceitful” in portraying her father as a fanatical Muslim (AAT [77]). However, the Tribunal states towards the beginning of the discussion of family targeting that “I have found the [Appellant] willing to stage actions such as legal and potentially illegal marriages to advance a migration outcome, including the falsification of a statutory declaration” (AAT [76], emphasis added). That statement indicates that the finding in AAT [65] had already been reached, and did not depend on the further adverse credibility findings in the family targeting section of the Tribunal’s reasons. The Minister accepts that the basis of the finding in AAT [65] must therefore be found in the findings in AAT [66]-[75].

54    Is there a probative basis for AAT [65]? As developed in oral argument, the argument became that the Tribunal’s adverse findings against the Appellant in AAT [66]-[75] (set out in [52] above) did not provide a sufficient basis to conclude that the Appellant had lied on at least one statutory declaration, given (i) the seriousness of such a finding; (ii) the fact that there was no evidence before the Tribunal showing that the contents of the February 2015 statutory declaration had been explained to the Appellant; and (iii) the materials showed that the Appellant was vulnerable (such as she had only a year 10 education). I do not accept that argument.

55    It is true that a finding that a person has provided a false statutory declaration is not lightly made. However, the Tribunal’s adverse credibility findings in connection with the Appellant’s marriages and partnerships were clear and wide-ranging, and provide an ample basis for concluding that the Appellant is not a reliable witness generally, and therefore for disbelieving her explanation for the inconsistency between her statutory declarations of April and June 2015. It is not irrational for the Tribunal to conclude that, because it found that multiple parts of the Appellant’s other evidence lack credibility for separate reasons, this general lack of credibility provided a reason not to accept an innocent explanation provided for an inconsistency between her statutory declarations: see generally Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [12] (Gleeson CJ), [49] (McHugh and Gummow JJ).

56    Implicit in the Tribunal’s rejection of the Appellant’s explanation is that the Tribunal was satisfied that the Appellant was indeed aware of the contents of the relevant statutory declarations. It was clear on the materials that the Appellant did not speak or write English. However, it was open to the Tribunal to find (implicitly) that the contents of the statutory declaration would have been explained to the Appellant: that was the process followed in her response to the s 424A letter. Put another way, it was open to the Tribunal to disbelieve her statement that she did not know what she was signing, even without any specific evidence showing that the contents of the April 2015 statutory declaration had been explained to her. The Tribunal could legitimately rely on the Appellant’s visa history, and its findings to the effect that the marriage to Mr K was entered into to achieve migration outcomes, to be satisfied that the Appellant would have known the contents of her statutory declarations; in particular, the content of her declaration made in support of the application for a partner visa.

57    For these reasons, proposed Ground 2 lacks sufficient merit to warrant the grant of leave to raise it for the first time on appeal.

conclusion

58    For the reasons set out above, the appeal is dismissed with costs.

Associate:

Dated:    17 September 2025